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2017 DIGILAW 1031 (HP)

Om Prakash Sahani v. State Of H. P.

2017-09-06

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. - During the course of the learned Chief Judicial Magistrate, Solan holding trial of the Accused in respect of FIR No. 153 of 2013, an application, constituted under the provisions of Section 92 read with Section 311 of the Code of Criminal Procedure, was instituted by the prosecution. The prayer made in the aforesaid application, was, for recalling PW Ashwani Kumar. The reason set forth in the application, for hence the aforesaid PW being ordered to be recalled, is, embodied in his being hence facilitated to produce certain photographs, wherein the inculpatory role of the Accused stands revealed. 2. The application was contested by the Accused/Petitioner herein. Upon hearing the respective counsel for the parties, the learned Chief Judicial Magistrate, Solan allowed the application. The Petitioners/Accused hence prefers the instant Petition before this Court. 3. The learned counsel appearing for the Petitioner has, with much vigour, made espousals in respect of frailty of the affirmative reasoning assigned by the learned Chief Judicial Magistrate, Solan, reasoning whereof occurs in paragraph-4 of the impugned orders, para whereof stands reproduced hereinafter: "Though, at the time of examination, Sh. Ashwani Kumar, in the Court, had tried to produce on record such photographs in clandestine manner without seeking permission of the Court and Court had straight away rejected the production of the photographs. Therefore, at this stage, same cannot be allowed to be produced on record. On these grounds, the Accused persons have prayed for dismissal of the application". wherein voicing(s) occur of the aforesaid prosecution witness at the time of his deposition being recorded by the learned Chief Judicial Magistrate, his, thereat concerting to, in a clandestine manner, adduce certain photographs in evidence, manner(s) whereof of theirs adduction in evidence, without, his prior thereto seeking permission of the Court concerned, hence constraining the learned Court concerned to reject the aforesaid endeavour(s). For testing the vigour of the aforesaid submission, it is imperative to allude to the reply filed by the Petitioner/Accused, to, the application cast under the provisions of Section 311 of Cr. For testing the vigour of the aforesaid submission, it is imperative to allude to the reply filed by the Petitioner/Accused, to, the application cast under the provisions of Section 311 of Cr. P.C. the apt portion of the reply filed by the respondent, unveils an admission of the Accused, of, the aforesaid PW Ashwani Kumar, attempting, during the course of recording of his deposition in Court, to, in a clandestine manner, without his prior thereto seeking permission of the Court concerned, hence adduce certain photographs in evidence, effort(s) whereof were objected to by the learned defence counsel, hence sequelling the learned Chief Judicial Magistrate, to reject their adduction in evidence. The aforesaid apposite acquiescence, does, contrarily purvey vigour to the reasons ascribed by the learned Chief Judicial Magistrate, for his hence proceeding to order for the aforesaid prosecution witness being permitted to be recalled, for his hence being facilitated, to produce certain photographs besides also, the APP concerned being facilitated to exhibit them as pieces of incriminatory evidence(s) against the Accused. 4. Be that as it may, the learned counsel for the Petitioners/Accused has also with much vigour contended that with the aforesaid prosecution witness, not, in respect(s) thereof making any voicing(s) in his previous statement(s) recorded in writing by the Investigating Officer nor his making any apposite echoings in respect thereto in his testimony recorded by the learned Chief Judicial Magistrate, except during course thereof, his failingly attempting to, in a clandestine manner, produce/adduce certain photographs in evidence also his thereat attempting their exhibition by the learned APP concerned, thereupon the prosecution being subsequently barred to seek recall of the aforesaid prosecution witness. For appreciating the worth of aforesaid submission, it is imperative to extract the relevant provisions borne in Section 311 of Cr.P.C., provisions whereof stand extracted hereinafter: "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 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." 5. The bestowal of jurisdiction upon the learned trial Court, to, in consonance with the relevant hereabove apt underlined portion thereof, hence order for recall of any PW, enjoins evident satiation surfacing vis-a-vis the trite statutory parameters (a) his evidence being of immense probative worth (b) his evidence being essential for a just decision of the case. Given the aforesaid connotation(s) vis-a-vis the apt above underlined portion(s) of Section 311 Cr.P.C., thereupon, the Chief Judicial Magistrate, concerned appears not to have detracted from subtle nuance(s) thereof, visibly with certain photographs in respect of whose adduction into evidence, he, was directed to be recalled, prima-facie, appearing essential, for thereupon the learned Chief Judicial Magistrate concerned being facilitated to arrive at a just decision in respect of the charge (s) framed against the Accused. The statutory discretion exercised by the learned Chief Judicial Magistrate, Solan, qua essentiality of re-examination of PW-4, for hence facilitating him to thereat adduce certain photographs into evidence, besides the subjective satisfaction made by him qua thereupon his being also hence leveraged to arrive at a just decision, in respect of the charge(s) framed against the Accused, cannot, at this stage, be construed to be ingrained with any gross illegality, unless there was material before this Court in respect of his being not cited as a prosecution witness nor his eye witnessing the occurrence, whereupon alone the visibly bald attempt of the prosecution, to, through an application cast under the provisions of Section 311 Cr. P.C. Hence ensure adduction through him into evidence, of certain photographs, would be construable to be an afterthought, also the purported pieces of incriminatory evidence(s) vis-a-vis the Accused, would acquire vices of concoction and invention, whereupon the exercise of the apposite subjective satisfaction by the Magistrate concerned, would, also beget stains of concoction and invention. Contrarily when PW-4 stood cited as a prosecution witness, also when during the course of his examination-in-chief, he clandestinely/disaffirmatively attempted, to, adduce certain photographs into evidence besides strived to enable the APP concerned to exhibit them. Consequently, thereupon even if, in his previous statement recorded under Section 161 Cr. Contrarily when PW-4 stood cited as a prosecution witness, also when during the course of his examination-in-chief, he clandestinely/disaffirmatively attempted, to, adduce certain photographs into evidence besides strived to enable the APP concerned to exhibit them. Consequently, thereupon even if, in his previous statement recorded under Section 161 Cr. P.C. by the Investigating Officer concerned, he, omitted to make any disclosure therein in respect of his possessing certain photographs'', with depictions thereon vis-a-vis incriminatory role (s) of the Accused, yet omission(s) aforesaid are not critical, nor the application cast under the provisions of Section 311 Cr.P.C. is either hence naked or bald, especially when on his re-testifying, as a prosecution witness, the learned defence counsel, holds all leverages to thereat make all attempt(s), to, by confronting him with his previous statement recorded in writing, hence impeach the creditworthiness of the re-testification (s) of the aforesaid prosecution witness. 6. In aftermath, on the re-examination PW-4, no apparent prejudice would be caused to the Accused. Also when the probative worth of the documentary evidence proposed to be adduced by PW-4, on his being directed to be re-called and concomitantly re-examined, is yet to be gauged along with, other incriminatory evidence against the Accused, thereupon also it appears that the aforesaid documentary evidence is not the singular incriminatory evidence(s) available with the prosecution, in respect of the charge, for thereupon the trial Court being enabled to pronounce a just decision upon the charge(s), rather its probative worth is to be assessed along with connected therewith incriminatory piece(s) of evidence, testified by other prosecution witness concerned. Sequel thereof is that the proposed piece(s) of documentary evidence while, not, comprising singular or solitary piece(s) of incriminatory evidence(s) against the Accused, thereupon the application constituted under the provisions of Section 311 Cr. P.C. by the prosecution, though, is instituted subsequent to the examination of PW-4, with a prayer therein of his being directed to be re-called for his retestifying, is not infected with any vice(s), of, hence the prosecution creating fresh evidence or its nowat inventing evidence(s) vis-a-vis charge besides its through PW-4 introducing contrived evidence in proof of the charge(s), rather it appears that its introducing evidence corroborative of connected therewith evidence testified by other prosecution witnesses. 7. Consequently, there is no merit in the present Petition and the same is dismissed. 7. Consequently, there is no merit in the present Petition and the same is dismissed. The learned Chief Judicial Magistrate, Solan is directed to, within two weeks, hereinafter ensure that PW-4 Ashwani Kumar appears before him for his recording his testification, also he be permitted to thereat adduce the aforesaid piece(s) of documentary evidence. Moreover, the learned Chief Judicial Magistrate, Solan is directed to enable the APP concerned to exhibit them. Needless to say that the learned defence counsel shall be afforded all opportunities, on all facets, to conduct an efficacious cross-examination of PW-4. He is also permitted to raise all objection(s) with regard to the admissibility and relevance of the apposite photographs. All pending application(s), if any are also disposed of. No costs. Copy dasti.