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2016 DIGILAW 281 (RAJ)

Shilpi @ Sanchita Gupta v. State of Rajasthan

2016-02-18

SANDEEP MEHTA

body2016
JUDGMENT : Sandeep Mehta, J. The instant miscellaneous petition has been preferred by the petitioner accused Shilpi @ Sanchita Gupta being aggrieved of the order dated 06.11.2015 passed by the learned Sessions Judge, Jodhpur District in Sessions Case No.152/2013 whereby, the application filed on behalf of the petitioner in the trial court under Section 231(2) read with Section 311 of the Cr.P.C. was rejected and the prayer made on her behalf for recalling the witness (PW-41) Mukta Pareek, SHO, Women Police Station (West) was rejected. 2. The application under the above provisions was filed before the trial court with a prayer to recall the witness Mukta Pareek for cross-examining her in reference to the alleged tampering in the Malkhana Register exhibited before the Court. The situation for the prayer to recall the witness presented itself because the investigating officer (PW-43) Chanchal Mishra, in her cross-examination, admitted that the document (Malkhana Register) was not presented by her along-with the charge-sheet. The fact that there are certain alterations in the Malkhana Register is not disputed and is admitted by the prosecution, which tried to explain the same by filing a reply in the trial court. The trial court, accepted the said explanation filed by the prosecution assuming that the explanation for the alterations in the Malkhana Register was satisfactory. The petitioner accused raised a grievance before the trial court that the explanation furnished by the prosecution has to be tested on the anvil of cross-examination and could not be accepted as such. The said prayer made on behalf of the accused was turned down as stated above and hence, this miscellaneous petition. 3. Shri Vineet Jain, learned counsel representing the petitioner contends that the fact that alterations exist in the Malkhana Register is admitted in the reply to the application filed by the prosecution before the trial court. The alterations were noticed when the witness Chanchal Mishra came in the witness box, however, she feigned ignorance about these alterations claiming that the charge-sheet had been filed by Mukta Pareek, who could furnish an explanation of the so-called alterations. The explanation, which the prosecution attempted to put up for these alterations through the reply filed before the trial court, has to be tested on the anvil of cross-examination and cannot be accepted without providing such opportunity to the accused because such an action is likely to prejudice the defence. The explanation, which the prosecution attempted to put up for these alterations through the reply filed before the trial court, has to be tested on the anvil of cross-examination and cannot be accepted without providing such opportunity to the accused because such an action is likely to prejudice the defence. He therefore, urges that the impugned order is bad in the eye of law and deserves to be quashed. 4. Shri Pokar Ram Vishnoi, learned Special Public Prosecutor representing the prosecution in the trial court states that the alterations existing in the Malkhana Register were duly explained in the reply. Various articles recovered by the different investigation officers were deposited in the Malkhana on different dates and that is why, a few alterations were required to be made in its entries. Thus, as per him, the anomaly is duly explained and no direction for recalling the witness is required because the accused would not be prejudiced by the minor variations/alterations in the Malkhana Register entries which are otherwise also explained. 5. I have heard the arguments advanced by the learned counsel representing the parties and have gone through the impugned order as well as the material available on the record. 6. In my opinion, once, the fact regarding alteration in the Malkhana Register entries is admitted then, the accused has a right to prove that the same discredits the case of the prosecution. Unless, the concerned witness is confronted with this fact and an explanation is sought, the accused would not be entitled to take advantage thereof because a view may be taken that no challenge was given to the alterations existing in the Malkhana Register during the prosucution evidence. Chanchal Mishra (PW-43), in her cross-examination, shifted the responsibility of furnishing explanation of the alleged alterations on to the SHO Mukta Pareek. The trial court, accepted the explanation furnished by the Public Prosecutor in his reply as being sufficient. In the opinion of this Court, if the explanation is accepted without allowing the accused to test the concerned witness on the anvil of cross-examination, such an action would cause serious prejudice to the accused. It would virtually amount to condemning the accused on this issue without being heard. As a consequence, the impugned order is unsustainable in the eye of law. 7. The miscellaneous petition thus deserves to be and is hereby allowed. It would virtually amount to condemning the accused on this issue without being heard. As a consequence, the impugned order is unsustainable in the eye of law. 7. The miscellaneous petition thus deserves to be and is hereby allowed. The impugned order dated 06.11.2015 passed by the learned Sessions Judge, Jodhpur District is quashed and set aside. The witness Mukta Pareek (PW-41) shall be recalled and the accused petitioner shall be permitted to cross-examine her only as regards the alleged alterations appearing in the Malkhana Register exhibited before the Court. It is made clear that only a single opportunity to cross-examination the witness shall be provided to the petitioner in the above terms. The cross-examination shall be completed on one date of hearing and shall not be allowed to be spilled over. Stay application stands disposed of.