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Madhya Pradesh High Court · body

2016 DIGILAW 897 (MP)

Anand Dohare v. State of Madhya Pradesh

2016-10-05

ANAND PATHAK

body2016
JUDGMENT : Anand Pathak, J. 1. The present revision has been preferred under Sections 397, 401 of Cr.P.C. against the order dated 9.6.2016 passed by First Additional Sessions Judge, Bhind in S.T. No.273/2015 whereby the application preferred by the petitioner under Section 311 of Cr.P.C. filed on behalf of prosecution has been allowed. 2. Reason for being crestfallen is the allowance of the application of the prosecution and for calling the witnesses Bhujbal and Maya Devi (father and mother respectively of the victim-Alok). Witnesses Bhujbal as well as his wife Maya Devi are material witnesses because they were eyewitnesses and have seen the incident and their names figures in the FIR. 3. Learned counsel for the petitioner submits that the prosecution has filed the charge-sheet against the present petitioner for alleged offence punishable under Sections 302 and 307 of IPC in alternate 304 and 308 of IPC. The prosecution has completed its part of evidence and no witness has supported the prosecution story therefore to create evidence against the petitioner and to fill up the lacuna of the prosecution, application under Section 311 of Cr.P.C. has been moved for calling the witnesses as mentioned above. 4. According to the learned counsel for the petitioner, the investigating authority has not taken the statement of the witnesses under Section 161 of Cr.P.C. and no role of witnesses in any manner has been referred in the investigation therefore, they cannot be called as witnesses before the Court. He submits that the prosecution, in the charge-sheet, has not referred the name of these witnesses in the list of witnesses. Once, the prosecution witnesses have not supported the prosecution story therefore, to fill up the lacuna, prosecution cannot call the statement of those which have not been taken in the investigation. The petitioner relied upon the judgment rendered by the Supreme Court in the matter of Ramlakhan Singh and others v. State of U.P. reported in 1977 SCC (Cri) 474 as well as the judgment rendered by this Court in the matter of Indrajeet Singh v. State of M.P. reported in 2016(1) Cr.L.R. (MP) 115. 5. On the other hand, learned counsel for the respondent/State, Shri Sundaram, submits that the Court below has rightly passed the order for calling the witnesses as mentioned above. 5. On the other hand, learned counsel for the respondent/State, Shri Sundaram, submits that the Court below has rightly passed the order for calling the witnesses as mentioned above. According to him, the name of the witnesses Bhujbal and Maya Devi who happen to be the father and mother of victim-Alok figured in the FIR. They were the persons who were eyewitnesses of the incident. Similarly, in medical report, witness Bhujbal was present in person who recognised the victim. Therefore, he is integral part of the investigation. Therefore he can be called for tendering his statement. No illegality has been passed by the Court below in allowing the application of the prosecution under Section 311 of Cr.P.C. He further submits that in Dehati Nalisi report as well as statement of Roop Singh (PW-3), the name of witness Bhujbal is referred. They were the integral part of investigation. He relied upon the judgment rendered by High Court of Rajasthan in the matter of Om Prakash v. State of Rajasthan, reported in 2003 Cr.L.J. 4704 [2003 Legal Eagle(Raj) 203]. 6. Heard the learned counsel for the parties and perused the record. 7. Perusal of the record indicates that the name of the witness Bhujbal was in the FIR. He was the witness in the medical report wherein he recognised the victim at the time of medical report/post-mortem. Even his name figures in the statement of Roop Singh (PW-3) as well as in Dehati Nalisi report. Beside that he is the father of deceased Alok. 8. It is necessary to reproduce Section 311 Cr. P.C., which is as follows :- 311- Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 9. This section is divisible in two parts. 9. This section is divisible in two parts. In the first part, discretion is given to the Court and enables it, at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose evidence was already been recorded; on the other, the second part appears to be mandatory and requires the Court to take any of the steps mentioned above if the new evidence appears to it essential to the just decision of the case. The object of the provision, as a whole, is to do justice not only from the point of view of the accused and the prosecution but also justice from the point of view of orderly society. The Court examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. Fundamental thing to be seen is whether this evidence the Court thinks necessary in the facts and circumstances of the particular case before it. If this resulting in what is sometimes thought to be the filling of lacunae as contended by the learned counsel for the petitioner, that is purely a subsidiary factor and cannot be taken into consideration. This view is supported by the Rajasthan High Court in the matter of Om Prakash v. State of Rajasthan, reported in 2003 Cr.L.J. 4704 [2003 Legal Eagle(Raj) 203]. 10. In Mohanlal Shamji Soni v. Union of India, reported in 1991 Cr.L.J. 1521, application u/s 311 Cr. P.C. was filed after the examination of evidence or prosecution as well as of defence and closure of arguments of defence, but before arguments on behalf of the prosecution. 11. In Rajendra Prasad v. Narcotic Cell, 1999 Cri.L.R. (SC) 434 application u/s 311Cr. P.C. was filed when the defence highlighted the laches of prosecution during trial arguments. 12. Section 311 Cr. P.C. confers jurisdiction on the Judge to act in aid of justice. 13. 11. In Rajendra Prasad v. Narcotic Cell, 1999 Cri.L.R. (SC) 434 application u/s 311Cr. P.C. was filed when the defence highlighted the laches of prosecution during trial arguments. 12. Section 311 Cr. P.C. confers jurisdiction on the Judge to act in aid of justice. 13. There is no bar that a witness, whose statement under section 161 of Cr.P.C. had not been recorded at the time of investigation, cannot be allowed to examine under section 311 Cr.P.C. Under Section 231 Cr.P.C., the Court is to take all evidence produced in support of the prosecution. Therefore, where the statement of witness is not recorded under section 161 of Cr.P.C, but the prosecution with the prior permission of the Court produce such a witness, the accused cannot be said to have taken by the surprise. When a witness examined in Court, whose statement has not been recorded at the time of investigation under section 161 Cr.P.C., the evidentiary value to be attached to the evidence of such witness has to be looked into and if, it is found that prejudice has been caused to the accused, then the evidence of such witness may or may not be acted upon. Therefore, the argument of the learned counsel for the accused-non-petitioner does not find favour in this regard also. The contention of the learned counsel for the accused, that only those witnesses can be examined, whose statements have been recorded by the police under section 161 Cr.P.C. and find mention in the list of witnesses submitted with the challan under section 173 Cr.P.C., if accepted, will render the provisions of Section 311 Cr.P.C. Nugatory. These provisions namely, under section 161, 173 and 311 Cr.P.C. have got different objects, scope and they operate in different spheres. 14. In view of the above legal position, once the father and mother of the deceased were the integral part of the investigation process, then they cannot b e ousted for making statement just on the pretext that their statements have not been made under Section 161 of Cr.P.C. or their names were not mentioned in the list of witnesses. 15. In view of the above legal position, once the father and mother of the deceased were the integral part of the investigation process, then they cannot b e ousted for making statement just on the pretext that their statements have not been made under Section 161 of Cr.P.C. or their names were not mentioned in the list of witnesses. 15. The judgment relied upon by the petitioner/revisionist in the matter of Ramlakhan Singh and other (supra), the same was not in respect of calling of witnesses under Section 311 of Cr.P.C. Therefore the scope of Section 311 of Cr.P.C. was not before the Hon'ble Apex Court in the said matter. Similarly, the judgment passed by this Court and relied upon by the petitioner in the matter of Indrajeet Singh (supra) is also distinguishable due to factual differentiation. In the said case, application was filed to summon the doctor who recorded the dying declaration. Here the prosecution is not intending to fill up the lacuna but to call the witnesses who are integral part of investigation. Therefore, due to factual differentiation, the said judgments are not applicable in the present case. The trial Court has caused no illegality in passing the impugned order and allowing the witnesses as mentioned in the application. FIR contained the name of mother and father both, because they were present at the time of incident. Here the matter pertains to offence under Section 302/307, 304(2) and 308 of IPC wherein the son of the witnesses Bhujbal and Maya Devi has succumbed due to gun shot injuries and therefore, no error has been committed in calling the witnesses. 16. Resultantly, revision being devoid of merits, is hereby dismissed.