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2018 DIGILAW 1838 (ALL)

Malu Alias Sheoveer v. State Of U. P.

2018-08-23

J.J.MUNIR

body2018
JUDGMENT : 1. Heard Sri Amit Daga, learned counsel for the applicant and Sri Nitin Kesharwani, learned A.G.A. along with Sri Avaneesh Shukla, learned Advocate appearing on behalf of the State. 2. This application has been preferred from an order dated 04.05.2018 passed by Sri Prakash Tiwari, Additional Sessions Judge/ Fast Track Court-1, Meerut in Sessions Trial no.295 of 2017, State vs. Malu alias Sheoveer allowing an application (Paper no.37 Kha) made on behalf of the State by the learned Additional Government Counsel (Criminal), seeking to summon one Smt. Kanchan widow of Balvinder @ Bholu as a witness in the said trial. 3. The facts giving rise to the Sessions Trial, shorn of avoidable detail, may be best gathered from the earliest description of the occurrence that is to be found in the First Information Report dated 19.10.2016 giving rise to Case Crime no.0501 of 2016. The informant of the said First Information Report is one Balvinder alias Bholu son of Sri Narinder Singh, a native of Village Sorekha, Police Station Partapur, District Meerut. 4. The informant has pending trial been murdered, to which allusion would be made in commensurate detail later. 5. According to the First Information Report it is alleged that on 19.10.2016 at about 11.30 in the morning hours his father was proceeding from his house to his Gher and as he reached near the house of one Chhiddu, he was waylaid on the public road by Malu alias Sheoveer son of Dharampal (the applicant here), who obstructed his path and abused him. As the informant’s father asked the applicant not to abuse him, the applicant shot him, employing a fire arm that he was carrying. The informant and his mother upon hearing the shot ring out rushed to the scene of occurrence and saw the applicant shoot his father in the chest. His father collapsed to the ground soaked in blood, whereas the applicant brandishing his fire arm hurling abuses, took a escape route towards his house. The informant goes on to say that he and his mother carried his father to KMC Hospital, where the Doctor declared him dead. It is further said in the first information that the applicant harboured animosity against the informant’s family since he lost elections to the post of Pradhan. The informant goes on to say that he and his mother carried his father to KMC Hospital, where the Doctor declared him dead. It is further said in the first information that the applicant harboured animosity against the informant’s family since he lost elections to the post of Pradhan. The report closes with a request that the informant had come over to give information, which may be registered and proceedings in accordance with law taken. 6. A reading of the First Information Report makes it evident that there were two eye witnesses of the occurrence, that is to say, the first informant Balvinder @ Bholu son of deceased Narinder Singh and the deceased’s widow Smt. Nakshatra Kaur. There is no other eye witness, or for that matter a witness of fact of any kind, relating to the murder of Narinder Singh, the deceased. 7. It is not only shocking but may be perceived as almost telltale that these two eye witnesses Balvinder @ Bholu and his mother Smt. Nakshatra Kaur have both been done to death on 24.01.2018 regarding whose murder Case Crime no.45 of 2018, under Sections 320, 120B IPC, Police Station Partapur, District Meerut has been registered. 8. The informant and his mother both being dead, the trial has proceeded impoverished by an eye witness account, with the testimony of one Pradeep Singh Rana son of Rajendra, the scribe of the written information given to the police, that he had penned on the dictation of Balvinder @ Bholu, to prove the written information delivered to the Police. He was examined as PW-1, whereafter formal witnesses alone have been examined with no witness of fact much less an eye witness left to testify. It was in these circumstances that the learned D.G.C. (Criminal) on behalf of the State moved an application dated 27.02.2018, that was numbered as Paper no.37Kha on the file of the Trial Court, seeking to summon Smt. Kanchan wife of Balvinder @ Bholu as a witness. It was in these circumstances that the learned D.G.C. (Criminal) on behalf of the State moved an application dated 27.02.2018, that was numbered as Paper no.37Kha on the file of the Trial Court, seeking to summon Smt. Kanchan wife of Balvinder @ Bholu as a witness. The application was made with a specific allegation that both eye witnesses to the occurrence and the only witnesses of fact being dead, Smt. Kanchan on whose written information the murder of the two deceased eye witnesses was reported was required to be examined, in order to bring relevant facts on record, and, that, therefore, it was essential to the just decision of the case, to summon her as a witness. The said application was opposed by a written objection filed on behalf of the accused dated 04.05.2018, where the principal objection taken was that Smt. Kanchan was not an eye witness to the occurrence giving rise to the present case. She did not know any fact relating to the murder of Narinder Singh that is subject matter of the present trial and her evidence is, therefore, of no relevance in relation to facts in issue or relevant facts, involved in the present trial. The Trial Court has by its order impugned dated 04.05.2018 allowed the said application summoning Smt. Kanchan as a witness. Aggrieved by the said order, the present Application u/s 482 Cr.P.C. has been filed by the accused/ applicant Malu alias Sheoveer. 9. It would be profitable to reproduce the provisions of Section 311 Cr.P.C. that are the foundation of exercise of jurisdiction by the Trial Court passing the order impugned. It reads: “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.” 10. The provision grants wide discretionary authority to the Trial Court to summon a witness at any stage of any enquiry, trial or other proceeding or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined. The provision grants wide discretionary authority to the Trial Court to summon a witness at any stage of any enquiry, trial or other proceeding or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined. The Section, as rightly remarked by the Trial Court, and for a proposition of law well settled, is divided into two parts. The first confers wide discretion upon the Court to summon any person as a witness in a trial or examine a person in attendance though not summoned as a witness, which is a discretion vested with the Court that is to be exercised judiciously. The second part of the Section mandates the Court to summon and examine or recall and re-examine any person, if his evidence appears to be essential to the just decision of the cause. The second part of the Section hedges the discretion of the Court, in a matter where the evidence of a witness appears to be essential to the just decision of a case, making it mandatory for such a witness to be summoned and examined or recalled and re-examined. The learned Trial Judge has borne in mind this feature of the case that the two eye witnesses - the only two - were murdered before they could enter the witness box. This turn of events placed on the shoulders of the Court greater responsibility of assuming an inquisitorial role to unravel truth where eyes of the law, the two eye witnesses, were blinded by their murder at a critical juncture. It is this kind of a inquisitorial role that has been spoken of by their Lordships of the Supreme Court in Zahira Habibullah Sheikh vs. State of Gujarat, (2004) 4 SCC 158 , as participatory role in a trial for the court. It is said succinctly thus: “43. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.” 11. Again in Zahira Habibullah Sheikh (supra) dwelling upon the scope and object of the power conferred on the Court under Section 311 Cr.P.C., it has been held: “44. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, "any Court" "at any stage", or "any enquiry or trial or other proceedings" "any person" and "any such person" clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code.” 12. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code.” 12. Elucidating on the wide scope of Section 311 Cr.P.C. and the purpose to confer that power on the court, that should govern the exercise of it, the Hon'ble Supreme Court in Mannan SK vs. West Bengal, 2014 (13) SCC 59 held: “10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a court in its effort to ferret out the truth by procedure sanctioned by law. It is couched in very wide terms. It empowers the court at any stage of any inquiry, trial or other proceedings under the Code to summon any person as a witness or examine any person in attendance, though not summoned as witness or recall and re-examine already examined witness. The second part of the Section uses the word 'shall'. It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words 'essential to the just decision of the case' are the key words. The court must form an opinion that for the just decision of the case recall or re-examination of the witness is necessary. Since the power is wide it's exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and decide whether the prayer for recall is genuine.” (Emphasis by Court) 13. The decision in Manna SK (supra) was about invocation of the power under Section 311 Cr.P.C. in the context of recall of witnesses. There is no gainsaying that the same principle applies to the case of summoning a witness in the first instance, whose evidence is essential to the just decision of the case. 14. The submission of the learned counsel for the applicant on the other hand is that though the discretion to summon a witness under Section 311 Cr.P.C. is wide, the sine qua non to the exercise of power and the purpose of it all being the just decision of the case, power should be exercised judiciously and with extreme care and caution. He has referred to the principles adumbrated by the Hon'ble Supreme Court in Rajaram Prasad Yadav vs. State of Bihar and another, 2013 (14) SCC 461 to be followed by courts generally while exercising powers under Section 311 Cr.P.C., which in the said case their Lordship read along with Section 138 of the Indian Evidence Act. This Court would venture to say here that the connection between the two provisions that was noticed by their Lordships in Rajaram Prasad Yadav (supra) was in the context of recall and re-examination of witnesses for reasons more than obvious. Section 138 of the Indian Evidence Act deals with the order of examination of witnesses that becomes relevant when the prayer is to recall a witness for re-examination. The interplay, noticed in Rajaram Prasad Yadav (supra), between Section 311 Cr.P.C. and Section 138 of the Indian Evidence Act, though one of the most illuminating exposition of the law, would have little role to play in the case of a witness sought to be summoned in the first instance. Nevertheless, the principles laid down in Rajaram Prasad Yadav (supra) are a firm guide to the exercise of power under Section 311 Cr.P.C. and read thus: “17. Nevertheless, the principles laid down in Rajaram Prasad Yadav (supra) are a firm guide to the exercise of power under Section 311 Cr.P.C. and read thus: “17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Code of Criminal Procedure read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts: 17.1. Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case? 17.2. The exercise of the widest discretionary power under Section 311 Code of Criminal Procedure should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person. 17.4. The exercise of power under Section 311 Code of Criminal Procedure should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8. The object of Section 311 Code of Criminal Procedure simultaneously imposes a duty on the Court to determine the truth and to render a just decision. 17.9. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. 17.9. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. 17.11. The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. 17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. 17.14. The power under Section 311 Code of Criminal Procedure must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.” (Emphasis by Court) 15. There is no quarrel regarding the principles that have been authoritatively laid down by their Lordships in Rajaram Prasad Yadav (supra). 16. There is no quarrel regarding the principles that have been authoritatively laid down by their Lordships in Rajaram Prasad Yadav (supra). 16. Learned counsel for the applicant submits that guidelines 17.12 and 17.13 in re Rajaram Prasad Yadav (supra) clearly indicate that additional evidence must not be received as a disguise, or to change the nature of the case against any of the parties, and, that the power must be exercised, keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved. He has emphasized, that going by the facts of the case in hand, the evidence of Smt. Kanchan is in the teeth of the principles laid down in paragraphs 17.12 and 17.13 (supra), inasmuch as, it is, in fact, an attempt to receive additional evidence as a disguise and also to change the nature of the case as Smt. Kanchan is not an eye witness, or any kind of a witness to the occurrence. She might be a witness to the occurrence involving the murder of the two eye witnesses of the present case, but that does not make her a witness of the occurrence involving the offence of murder that is subject matter of trial in the present case. He submits, therefore, that bearing in mind the principle in paragraph 17.13 in Rajaram Prasad Yadav (supra) the evidence of the witness sought to be examined would certainly not be germane to the issue involved, and, therefore, of no relevance. Learned counsel for the applicant, therefore, submits that there is no good cause for the Trial Court to have passed the impugned order summoning Smt. Kanchan as a witness. 17. Now turning to the facts of the case, most of which have been narrated in the opening part of the judgment, what appears to be the most distinctive feature is the hard truth that there were only two witnesses of the occurrence and both of them have been eliminated at a very critical juncture of the trial. The two witnesses, Smt. Nakshatra Kaur and Balvinder @ Bholu were the widow and the son of the deceased victim. The court, and in fact, the process of law has been suffocated by a dastardly elimination of the only two witnesses of the crime. The two witnesses, Smt. Nakshatra Kaur and Balvinder @ Bholu were the widow and the son of the deceased victim. The court, and in fact, the process of law has been suffocated by a dastardly elimination of the only two witnesses of the crime. This attempt made to suffocate the process of law certainly cannot be permitted to succeed for no individual, much less the real offender, can be permitted to murder the case against him, after murdering his victim. This Court should not be understood to point in the least measure, an accusing finger at the applicant, who is now before this Court seeking to assail the order impugned, for everyone is presumed to be innocent unless adjudged guilty. But that does not mean that the applicant, who is an accused in the case and standing his trial may ask a particular witness to be kept out from the court's cognizance, by relying on a specious plea that might have made sense, if the available evidence had not been snuffed out. The situation in which the court has been placed, it is but logical that standing up to its high order of duty to know the truth and to determine it, the Court would have to look to all evidence that would shed some light on the fact in issue. 18. In the opinion of this Court the best evidence rule in these circumstances cannot exclude the evidence of Smt. Kanchan, who is the widow and the daughter-in-law of the two murdered eye witnesses of the crime. The Trial Court has in this regard observed that if for arguments sake, the plea of defence were to be accepted that Smt. Kanchan is not an eye witness to the occurrence nor has she been cited as a witness by the prosecution, it cannot be denied that there is a possibility about a witness like her to shed some light on the circumstances relating to the crime. The Court blinded of all traces of evidence in the most brazen fashion by whoever is behind the crime, in the considered opinion of this Court, has taken the right course to summon Smt. Kanchan. By opting to do that the Court has rightfully exercised its wide powers under Section 311 Cr.P.C., precisely in the manner as the statute has envisaged the powers to be exercised. By opting to do that the Court has rightfully exercised its wide powers under Section 311 Cr.P.C., precisely in the manner as the statute has envisaged the powers to be exercised. The power exercised in the situation, in which the court has been placed, is well within the principles laid down by high and consistent judicial authority for the exercise of power under Section 311 Cr.P.C. 19. This Court before parting with the matter cannot ignore some concluding observations in the order impugned which say that the court does not wish to disclose, in what manner the evidence of Smt. Kanchan would be relevant as her life would be endangered thereby. There also the learned Trial Judge is absolutely right. The history of the case so far presented is a history of elimination of witnesses. In the circumstances this Court feels it, as the highest court of criminal jurisdiction in the State, to be its duty to ensure the security of life and limb of Smt. Kanchan, and, if she has any other member in the family surviving. 20. Now, that she has become a witness in this case, this Court considers it appropriate to direct the Inspector General/ Additional Director General, Meerut Zone, to provide adequate security to Smt. Kanchan, and, it shall be the personal responsibility henceforth of every incumbent in the office of the Inspector General/ Additional Director General, Meerut Zone, Meerut to ensure that no harm comes to Smt. Kanchan widow of Balvinder @ Bholu. This responsibility will not be washed off because of a change of the incumbent in the office of the Inspector General/ Additional Director General concerned. In case Smt. Kanchan comes to any harm referable to the present case, the Inspector General/ Additional Director General in office at the relevant time would be answerable to this Court personally. 21. This Court does not find any infirmity with the order impugned. This application fails and is accordingly dismissed with the directions hereinabove made. 22. Let a copy of this order be forwarded forthwith by the Registrar General to the Inspector General/ Additional Director General, by whatever designation the head of the Police of the Meerut Zone is called, for strict compliance. 23. Let a copy of this order be also immediately sent down to the Trial Court for information.