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2020 DIGILAW 168 (HP)

Sonu v. State Of H. P.

2020-02-26

DHARAM CHAND CHAUDHARY

body2020
JUDGMENT Dharam Chand Chaudhary, J. - In this appeal, an application registered as Cr.MP No. 815 of 2018 filed under Section 311 of the Code of Criminal Procedure by the respondent-State/prosecution for seeking permission to re-examine PW13 Dr. Richa Gupta has been heard by a Division Bench of this Court comprising Justice Tarlok Chauhan, J. and Justice Chander Bhusan Barowalia, J. and decided vide judgment dated 7.9.2018. Both the Judges constituting the Division Bench have, however, divided in their opinions, hence dissenting judgments came be be passed in this application. 2. In view of the dis-agreement in the judgments rendered by the Judges, constituting the Division Bench, the matter was placed before the Chief Justice in terms of the provisions contained under Section 392 of the Code of Criminal Procedure. The Chief Justice as per order dated 26.10.2018 has ordered to place the matter with the dissenting opinions of the Judges constituting the Division Bench before this Court for recording its opinion after such hearing as deemed appropriate. It is how this mater landed in this court. 3. The present is a case where the charge against the appellant-convict is that during the intervening night of 11th/12th May, 2014 at Village Sarahan, Tehsil and district Chamba he subjected the prosecutrix (name with-held) to sexual intercourse, who was about 12 years of age at that time and thereby committed an offence punishable under Section 376 of the Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act, 2012. 4. The facts leading to file the application under Section 311 of the Code of Criminal Procedure have been succinctly stated in both the judgments and as this Court has only to give its opinion about the dissenting view of the matter taken by the Judges constituting the Division Bench, therefore, to detail the facts of the case further would be a futile exercise and to over burden the judgment unnecessarily. 5. It is, however, desirable to refer to the circumstances leading to file application under Section 311 of the Code of Criminal Procedure and as to whether the re-examination of PW13 Dr. Richa Gupta is essentially required for just decision of the case. 6. The grounds in the application for re-examination of PW13 Dr. 5. It is, however, desirable to refer to the circumstances leading to file application under Section 311 of the Code of Criminal Procedure and as to whether the re-examination of PW13 Dr. Richa Gupta is essentially required for just decision of the case. 6. The grounds in the application for re-examination of PW13 Dr. Richa Gupta in a nut shell are that consequent upon the order passed by the trial Court in an application filed by the prosecution for obtaining blood samples of the prosecutrix and the accused for DNA Profiling, the I.O. PW11 SI Kamlesh Kumar has made an application to Medical Officer, Regional Hospital, Chamba for obtaining the blood samples of the accused and the prosecutrix for DNA Profiling. The accused and prosecutrix were also produced in the hospital before PW13 Dr. Richa Gupta. She had taken the blood samples of both of them on FTA cards on completion of codel formalities and handed over the same to the police for needful. The grounds so raised finds support from oral as well as documentary evidence available on record. PW11 while in the witness box has stated that an application for obtaining the blood samples of the accused and the victim Ext.PW11/K was made by him in the trial Court. The same was allowed vide order Ext.PW11/L. Subsequently, he filled the identification forms Ext.PW11/M qua the victim whereas Ext.PW11/N qua the accused. Their blood samples were obtained on FTA cards. 7. Now if coming to the documentary evidence, the identification memos Ext.PW11/M and Ext.PW11/N reveal that the blood samples of the victim and the accused were obtained by Dr. Richa Gupta. The same bears their signature in token of taking their blood samples. The order Ext.PW11/L passed by learned Sessions Judge, Chamba on the application Ext.PW11/K made by the I.O. reveal that learned trial Judge after recording satisfaction qua the DNA Profiling of blood of the accused is essentially required for just decision of the case allowed the same with a direction to the Superintendent, District Jail, Chamba to produce the accused before the Medical Officer in Regional Hospital, Chamba for drawing his blood sample. 8. Now if coming to the explanation as to why the re-examination of the witness is required, the case of the prosecution is that Dr. Richa Gupta while in the witness box could not be examined qua this aspect of the matter. 8. Now if coming to the explanation as to why the re-examination of the witness is required, the case of the prosecution is that Dr. Richa Gupta while in the witness box could not be examined qua this aspect of the matter. The statement of Dr. Richa Gupta amply demonstrate that she has not been examined at all qua this aspect of the matter. Although the appellant-convict has contested and resisted the application on the ground inter alia that the prosecution had ample opportunity before learned trial Court to have examined/re-examined Dr. Richa Gupta at an appropriate stage in the trial Court and also that at this belated stage to allow this application to re-examine and consequently to re-examine this witness would be nothing but to fill-up the lacuna left in the prosecution case and in that event mis-carriage of justice and serious prejudice likely to be caused to him. Yet the necessity or otherwise to re-examine PW13 Dr. Richa Gupta has to be considered in the light of the factual matrix hereinabove. 9. Now if coming to the divergent opinion formed by the Judges, constituting the Division Bench, it is significant to point out here that brother Justice Barowalia who has authored the judgment for the Division Bench on taking into consideration the given facts and circumstances and also the rival submissions as well as analysing the provisions contained under Section 311 of the Code of Criminal Procedure has dismissed the application while drawing the following conclusion: i) The witness was examined approximately three years back, therefore, allowing the application and her re-examination would amount to fill-up the lacuna left in the prosecution case; ii) PW13 Dr. Richa Gupta while in the witness box has not stated anything about taking the blood samples of the victim and the accused, therefore, filing the application at a belated stage when the appeal is on hearing board is nothing but amount to fill-up the lacuna. The first and foremost principle for exercising the powers to recall a witness for re-examination is that it is expedient and in the ends of justice to do so; and iii) No prejudice, serious in nature, should be caused to the accused by allowing the application and to re-call the witness for re-examination. 10. The first and foremost principle for exercising the powers to recall a witness for re-examination is that it is expedient and in the ends of justice to do so; and iii) No prejudice, serious in nature, should be caused to the accused by allowing the application and to re-call the witness for re-examination. 10. In the opinion of brother Barowalia, J. the re-examination of the witness if allowed at a belated stage would be nothing but to fill-up lacuna left in the prosecution case and also that prejudice, serious in nature, is likely to be caused to the accused in that event. Nothing has, however, come as to whether the re-examination of the witness is required for just decision of the case or not and the application has been ordered to be dismissed. 11. Now if coming to the dissenting judgment authored by brother Chauhan, J. the dis-agreement is based upon the following factors: i) If the re-examination of PW13 Dr. Richa Gupta is permitted, no serious prejudice is likely to be caused thereby to the appellant-convict nor such an exercise of power would result in miscarriage of justice to him; and ii) Allowing the application and to re-examine the witness would not amount to fill-up the lacuna in the prosecution case. 12. Brother Chauhan, J. in support of his dis-agreement has placed reliance on the law laid down by the Apex Court by way of several judicial pronouncements right from the year 1996 till 2017 as is apparent from paras-4 to 17 of the judgment he authored. The legal principles culled out on the basis of the law so discussed reads as follow: i) Lacuna in the prosecution case must be understood as the inherent weakness or latent wedge in the matrix thereof. ii) the advantage of a lacuna in the prosecution case normally go in favour of the accused but an oversight during the course of trial cannot be treated as irreparable lacuna. Iii) the function of the criminal courts is administration of criminal justice and not to count errors committed by the parties during the course of trial. The object of 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 piece of evidence on record or leaving ambiguity in the statements of witnesses examined by either side. The object of 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 piece of evidence on record or leaving ambiguity in the statements of witnesses examined by either side. iv) The determinative factor is as to whether it is essential to re-examine a witness for the just decision of the case. v) The only object underlying Section 311 of the code is to bring on record the evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. vi) The nature, scope and object of Section 311 of the Code dealing with the principles for exercise of discretionary power is that the power under Section 311 of the Code though is vast one and can be exercised at any stage of the trial. However, should be exercised only in those cases where the evidence to be tendered by the witness on re-call is germane to the issue involved. In case such evidence could not be adduced or brought on record due to an inadvertence, the power is not limited to recall a witness for further cross-examination with reference to his previous statement but also to take additional evidence for any reasons at a just decision. vii) This discovery of truth is essential principles of any trial or inquiry to render a just decision after discovering all relevant facts. viii) Of course power must be exercised judiciously and not capriciously or arbitrarily as any improper or capricious power may lead to undesirable results. ix) The additional evidence must not be received as a disguise for retrial or to change the nature of the case against either of the parties. x) The opportunity to cross-examine the witness qua the additional evidence recorded on re-examination and to produce rebuttal evidence, if any, should be given to the other party. xi) The very use of words such as "any Court", "at any stage", or "or any inquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of Section 311 of the Code have to be exercised in the widest possible terms and do not limit the discretion of the Court in any way. xi) The very use of words such as "any Court", "at any stage", or "or any inquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of Section 311 of the Code have to be exercised in the widest possible terms and do not limit the discretion of the Court in any way. Fair trial entails the interest of the accused, the victim and of the society, therefore, fair trial includes the grant of fair and proper opportunities to the parties. Where the offence is against society, it is the unfortunate victim, who is the actual sufferer, hence it is imperative for the prosecution to ensure that no stone is left unturned to bring guilt home to the accused. xii) That the power under Section 311 of the Code must be exercised with caution and circumspection and only for strong and valid reason as recall of a witness already examined is not an opportunity as a matter of course and discretion given to the court in this regard has to be exercised judicially to prevent failure of justice. xiii) that delay in filing the application for re-calling a witness is one of the important factor and the same should be explained in the application. 13. Besides, the principles culled out by the Apex Court after examining the entire case law in titled Rajaram Prasad Yadav Vs. State of Bihar and another, (2013) 14 SCC 461 have also been taken into consideration by brother Chauhan, J. 14. The Apex Court in titled Manju Devi versus State of Rajasthan, (2019) 6 SCC 203 and another has again reiterated the legal principles hereinabove while holding that discretionary powers under Section 311 Cr.P.C. is essentially intended to ensure that every necessary and appropriate measure should be taken by the court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned and also ensure that no prejudice is caused to anyone. Also that the age of the case itself is not a decisive factor to deny the prayer made for re-examination of a material witness. 15. Also that the age of the case itself is not a decisive factor to deny the prayer made for re-examination of a material witness. 15. The reasons for taking a contrary view of the matter to allow the application recorded by brother Chauhan, J. also reads as follow: ".....From a conspectus consideration of the above decisions, it would be evidently clear that the principles as culled out by learned brother Barowalia, J., in para 8 of the judgment, are in tune and in conformity with the judgments of the Hon'ble Supreme Court. However in my considered opinion, the salutary provisions of Section 311 of the Code have not been taken into consideration as while considering an application under this provision is one of the main objects to be taken into consideration to enable the Court to find out the truth and render a just decision, such power can be exercised at any stage of any enquiry, trial or other proceedings. The object of Section 311 of the Code is, as a whole, to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. Adverting to the present case, it has to be borne in mind that the same is an extraordinary one, where the nonapplicant/accused has been charged for offences punishable under Section 376 IPC and Section 4 of the Protection of Children from Sexual Offences Act, 2012, therefore, in such circumstances, the prosecution case cannot be made to suffer only because the Public Prosecutor failed to question PW13 Dr. Richa Gupta with regard to DNA profiling, which is an extremely vital evidence in this case to enable the Court to find out the truth and render a just decision. In my considered opinion, the evidence of PW13 Dr. Richa Gupta is essential to a just decision of the case as it is necessary to find out truth or obtain proper proof of facts of this case, which would not only enable this Court to arrive at a just but also a correct decision. In my considered opinion, the evidence of PW13 Dr. Richa Gupta is essential to a just decision of the case as it is necessary to find out truth or obtain proper proof of facts of this case, which would not only enable this Court to arrive at a just but also a correct decision. Undoubtedly, allowing this application is going to cause some prejudice to the accused/non-applicant, but then the exercise of such power cannot be dubbed as filing up lacuna in prosecution case because, as already stated above, re-examination of the witness is essential for a just and correct decision of the case...." 16. I have read both the judgments. But my views are also at variance with that of my learned brother Justice Barowalia. Being so, for the reasons to be recorded hereinafter my opinion in the matter is also the same as has been formed by brother Chauhan, J. 17. The oral as well as documentary evidence, discussed at the outset, the prosecution case qua seeking permission of the court for obtaining blood sample of the accused is duly proved from the order Ext.PW11/L passed by learned Sessions Judge, Chamba on the application Ext.PW11/K filed by the prosecution. The identification memos Ext.PW11/M and Ext.PW11/N amply demonstrate that Dr. Richa Gupta has taken the samples of the victim of the occurrence and also the accused on FTA cards. The blood samples were subsequently forwarded to the Forensic Science Laboratory for DNA Profiling. The Forensic Science Laboratory report is Ext.PX which discuss the blood sample of victim and that of the accused Ext.P1 and Ext.P2 were received there for analysis. The result under the heading "observations" is that on the salwar and vaginal swab of the victim the DNA matches with the DNA Profile obtained from the blood sample on FTA card of the accused. As already noticed at the very outset PW13 Dr. Richa Gupta has not been examined at all qua this aspect of the matter. The reasons, therefore, obviously is an oversight and inadvertent omission on the part of the learned Public Prosecutor. The necessity to re-examine PW13 Dr. Richa Gupta vis-a-vis the gravity and heinousness of the offence allegedly committed is writ large on the face of the record. There should be fair trial between the parties. Allowing to re-examine PW13 Dr. The reasons, therefore, obviously is an oversight and inadvertent omission on the part of the learned Public Prosecutor. The necessity to re-examine PW13 Dr. Richa Gupta vis-a-vis the gravity and heinousness of the offence allegedly committed is writ large on the face of the record. There should be fair trial between the parties. Allowing to re-examine PW13 Dr. Richa Gupta is not to fill-up any lacuna left in the prosecution case and rather required for just decision of the case and to ensure complete justice to the parties on both sides. 18. Though brother Chauhan, J. has also observed in last part of the judgment that allowing the application at this stage is likely to cause prejudice to the appellant-convict, however, for the reasons recorded hereinabove, no prejudice is likely to be caused to him as he will have an opportunity to cross examine Dr. Richa Gupta and even also to produce evidence in rebuttal, if so advised. The present is also not a case where the application should be dismissed only because of filed at a belated stage, for the reasons that plain reading of section 311 of the Code amply demonstrate that court may at any stage of inquiry, trial or other proceeding under the Code re-call and re-examine any person already examined as witness if his/her evidence appears to it to be essential for just decision of the case. 19. In view of the legal principles discussed hereinabove and the given facts and circumstances, the present in my considered opinion is a case where PW13 Dr. Richa Gupta is required to be re-examined as to do so is essentially required for just decision of the case. 20. The net result of the aforesaid discussion would, therefore, be that the application deserves to be allowed and the witness Dr. Richa Gupta re-called for re-examination in terms of the judgment rendered by brother Tarlok Chauhan, J. Ordered accordingly.