Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 620 (MP)

Annu @ Anil v. State of M. P.

2018-07-13

SHEEL NAGU

body2018
JUDGMENT : 1. The inherent powers of this court u/S. 482 Cr.P.C. are invoked to assail the interlocutory order passed on 18/1/18 in S.T. No. 285/2014 by learned Additional Sessions Judge Ambah District Morena rejecting an application u/S. 311 Cr.P.C. preferred by all the six accused/petitioner seeking a direction from the trial Court to summon PW Rajveer who was though present before the trial Court on 21/12/16 but was given up by the public prosecutor. 2. Learned counsel for the rival parties are heard. 3. Learned counsel for the petitioners/accused primarily submits that Rajveer is the only independent eye-witness in the present case involving the offence of murder, since all the remaining eye-witnesses are somehow related to the deceased and therefore, it is contended that Rajveer should have been examined by the prosecution. It is submitted that failure of prosecution to examine the said independent PW prejudices the defence of the accused and also prevents truth from being revealed. The judgment of the Apex Court in the case of Rajaram Prasad Yadav Vs. State of Bihar reported in (2013) 14 SCC 461 is relied upon for this purpose. 4. Per contra, learned counsel for the respondents/State defends the impugned order and seeks dismissal of the present petition, by contending that it is the prerogative of prosecution to examine or give up any PW proposed. 5. The charge-sheet is on record, perusal of which reflects that Rajveer appears to be the only independent eye-witness who is not related to the deceased. Admittedly, the prosecution is entitled to exercise its exclusive right to decide as to which PW to be examined and which to be given up but the trial court in the process of adducing of prosecution evidence can not remain a mute spectator. It is paramount duty of the trial court to ensure that justice is done by punishing the guilty and acquitting the innocent which can be achieved only when the truth is discovered. Truth emerges when all the relevant pieces of evidence and material collected by the prosecution are put to trial by adducing of evidence. In this exercise of search of truth the importance of impartial eye-witnesses assume relevance. An impartial eyewitness can guide and assist the trial court to separate grain from chaff and in the process enable the trial court to render the right and just decision. 6. In this exercise of search of truth the importance of impartial eye-witnesses assume relevance. An impartial eyewitness can guide and assist the trial court to separate grain from chaff and in the process enable the trial court to render the right and just decision. 6. The Apex Court in one of its resent decisions in the case of Rajaram Prasad Yadav (supra), after analyzing gamut of its earlier decisions right from 1968 till date, has laid down following guiding principles for aid and assistance of the trial court to understand the contours of powers to be exercised of Section 311 Cr.P.C.. The relevant paragraph 17 of the said judgment is reproduced below :- “17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read alongwith 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 Cr.P.C. should ensure that the judgment should not be rendered on in choate, in conclusive 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 Cr.P.C. 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. 17.6 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 311Cr.P.C. 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 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 a 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 Cr.P.C. 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. 17.14 The power under Section 311 Cr.P.C. 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.” 7. A bare perusal of the impugned order reflects that the decision of the Apex Court in the case of Rajaram Prasad Yadav (supra) is though mentioned by the learned trial Judge but has not been considered. 8. The trial Court by rejecting the application u/S. 311 Cr.P.C. of the accused/petitioners has assumed the role of silent spectator by abdicating its functions as a trial Judge whose ultimate object is to reach the truth which is not achievable when cogent and relevant evidence/material shut out by failing to examine independent eye-witness like Rajveer. 9. The combined reading of paragraph 17.7, 17.8, 17.9 and 17.10 of the above verdict of Apex Court are relevant to the issue involved herein but have not been considered by the learned trial Judge. 10. This Court therefore, deems it appropriate that since the trial Judge has not appropriately tested the factual matrix attending the instant case on the anvil of the guiding factors laid down in the case of Rajaram Prasad Yadav (supra), it would be appropriate to enable the trial court to consider afresh the application u/S. 311 Cr.P.C. in accordance with law and relevant judicial precedents. 11. In view of above, the impugned order dated 18/1/18 so far as it dismisses the application u/S. 311 Cr.P.C. of accused/petitioners is set aside with direction to the learned trial Judge to reconsider the same on the anvil of provision of Cr.P.C. and law laid down by the Apex Court in Rajaram Prasad Yadav (supra) after hearing the rival parties. No cost.