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2018 DIGILAW 296 (UTT)

Dilawar Singh v. State of Uttarakhand

2018-05-29

V.K.BIST

body2018
JUDGMENT : Revisionists have challenged the order dated 19.05.2018 passed by the learned Additional Sessions Judge, Kotdwar, District Pauri Garhwal in Sessions Trial No. 03 of 2017, ‘State of Uttarakhand v. Kuldeep and others’, whereby the application moved by the revisionists under Section 311 Cr.P.C. has been rejected. 2. On 19.05.2015, an F.I.R. was lodged by one Mr. Padam Singh Rawat, father of the deceased against the revisionists under Section 304(B) of I.P.C. and Section 3/4 of the Dowry Prohibition Act. Charge-sheet was submitted by the Investigating Officer. Thereafter, charges were framed against the revisionists and as many as 10 witnesses have been examined. Thereafter, the revisionists moved an application under Section 311 Cr.P.C. on 15.12.2017 for recalling the P.W.-1 & P.W.-2 for further cross-examination; but, the learned District & Sessions Judge rejected the said application. 3. The application was filed on the ground that some important questions were left to be asked in the cross examination. Further ground was that when the P.W.-1 & P.W.-2 were cross examined, at that point of time, Senior Advocate representing the accused was out of the country and the cross examination was conducted by the junior counsel. 4. Learned counsel for the revisionists submitted that though it was a simple case of poisoning and poison was consumed by the deceased in her sister’s house; but, entire family of the revisionists have been booked in the present case. He further submitted that the application filed under Section 311 Cr.P.C. can be filed at any stage and there is no limitation as such. In support of his contention, he referred to para 12 of the judgment passed by the Hon’ble Apex Court in the matter of P. Sanjeeva Rao v. State of A.P. reported in 2012 (2) N.C.C. 500, which is being reproduced below: “12. The nature and extent of the power vested in the Courts under Section 311 Cr.P.C. to recall witnesses was examined by this Court in Hanuman Ram v. The State of Rajasthan & Ors. (2008) 15 SCC 652 . This Court held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses. (2008) 15 SCC 652 . This Court held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of the witnesses. This Court observed: “This is a supplementary provision enabling, and in certain circumstances imposing on the Court, the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” (emphasis supplied) 5. Learned counsel for the revisionists then submitted that, in fact, the very relevant and important questions were left to be asked; therefore, recalling of the witnesses is necessary and learned trial Court must have allowed the said application. He also referred to para 13 of the judgment passed by the Hon’ble Apex Court in the matter of P. Sanjeeva Rao v. State of A.P. reported in 2012 (2) N.C.C. 500, which is being reproduced below: “13. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar (2000) 10 SCC 430 . The following passage is in this regard apposite: “In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.” (emphasis supplied) 6. Learned counsel for the revisionists also referred to the document annexed with the revision, in which he has framed as many as 12 questions, which revisionists intend to ask from P.W.-1 & P.W.-2. 7. Learned Deputy Advocate General vehemently opposed the contention of the revisionists by stating that till today as many as 10 witnesses have been examined and application was moved at a belated stage. He further submitted that P.W.-1 & P.W.-2 were cross examined at great length and the ground that the Senior Advocate was not present on that day cannot be a valid ground for recalling the witnesses. 8. He further submitted that P.W.-1 & P.W.-2 were cross examined at great length and the ground that the Senior Advocate was not present on that day cannot be a valid ground for recalling the witnesses. 8. I have considered the learned counsel for the parties. It is not in dispute that witnesses can be examined at any stage. It is also not in dispute that there is no limitation in recalling the witnesses. But, in my view, the revisionists can not get the benefit of aforesaid judgment in the present case. I have carefully perused the application filed under Section 311 Cr.P.C. by the revisionists. In that application, only it is written that very important questions were left to be asked from P.W.-1 & P.W.2. 9. It is not a case of the revisionists that when P.W.-1 & P.W.-2 were being cross examined, on that day, learned counsel appearing for the revisionists did make mention for getting the case adjourned for cross examination in absence of his Senior Advocate. Revisionists’ counsel, who was representing the revisionists, took a chance and he cross examined P.W.-1 & P.W.-2 thoroughly. After doing so, the revisionists cannot be permitted to press their application on the ground that Senior Advocate was not present on that day. Second ground of the revisionists is that very important questions were left to be asked. This ground also cannot be said a valid ground for recalling the witnesses for cross examination. The counsel, who was preparing the case of the revisionists, should have asked all the important/relevant questions when the witnesses were being cross examined. Another argument of the learned counsel for the revisionists is that learned trial Court has wrongly rejected the application of the revisionists on the ground of delay, as the application under Sections 311 Cr.P.C. can be filed at any stage. It is true that application under Section 311 Cr.P.C. can be filed at any stage; but, valid and sufficient reason should be given for recalling the witness again. Reason given by the revisionists, in my view, is not valid reason. The learned Additional Sessions Judge has exercised his jurisdiction in accordance with law. The order passed by the learned Additional Sessions Judge needs no interference of this Court. 10. The Criminal Revision is dismissed. 11. As prayed, let a certified copy of this judgment be issued within twenty four hours.