Research › Search › Judgment

Rajasthan High Court · body

2020 DIGILAW 37 (RAJ)

Siya Ram v. State of Rajasthan

2020-01-03

VIJAY BISHNOI

body2020
JUDGMENT Vijay Bishnoi, J. - This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 20.08.2019 passed by the Additional Sessions Judge No.2, Nagaur (hereinafter to be referred as the 'trial court) in Sessions Case No.73/2015 (128/2014)(43/2012), whereby the application filed on behalf of the petitioner under Section 311 CrP.C. with a prayer for recalling the Investigating Officer PW32-Babu Lal has been rejected. 2. The trial court is of the opinion that counsel for the petitioner was granted full opportunity to cross-examine PW-32 Babu Lal and he was cross-examined at length. It is also observed that reasons given by the petitioner to justify his prayer for recalling PW-32 Babu Lal is not tenable as the petitioner only wants to fill up lacuna in the case of defence. The trial court while exercising its discretion has given a finding that recalling of PW-32 Babu Lal is not desirable for arriving at a just decision of the case and as such prayer of the petitioner of recalling PW-32 Babu Lal cannot be accepted. 3. Learned counsel for the petitioner has submitted that the petitioner has set out a specific case that on what points he wants to cross-examine the prosecution witness PW-32 Babu Lal. It is submitted that even after due diligence by the advocate, the said question could not be asked in the cross-examination regarding recovery of button of the shirt of the deceased and only on that point the petitioner wants to cross-examine the said prosecution witness. It is submitted that recalling of PW-32 Babu Lal will not prejudice the prosecution in any manner as the prosecution can also confront or cross-examine the said witness. Learned counsel for the petitioner has placed reliance on the decisions of the Hon'ble Supreme Court in Mannan SK & Ors. vs. State of West Bengal & Anr, (2014) CrLR 808 SC and Natasha Singh vs. CBI (State), (2013) CrLR 582 SC 4. Learned Public Prosecutor has opposed the misc. petition. 5. Heard learned counsel for the petitioner and perused the impugned order. 6. vs. State of West Bengal & Anr, (2014) CrLR 808 SC and Natasha Singh vs. CBI (State), (2013) CrLR 582 SC 4. Learned Public Prosecutor has opposed the misc. petition. 5. Heard learned counsel for the petitioner and perused the impugned order. 6. It is not in dispute that evidence of the prosecution witness PW-32 Babu Lal was started on 07.08.2015 and his crossexamination was started on 03.09.2015 and continued up to 02.09.2016 and during that period all the advocates of the accused persons had cross-examined PW-32 Babu Lal in detail including counsel representing the petitioner. The contention of the petitioner to the effect that his advocate had failed to crossexamine the Investigating Officer in respect of recovery of button of the shirt, at the instance of the petitioner, is not tenable as it will amount to fill up lacuna in his defence. 7. It is true that as per the law laid down by the Hon'ble Supreme Court in Mannan SK & Ors. vs. State of West Bengal & Anr and Natasha Singh vs. CBI (State), there is no time limit when the application for recalling or summoning any witness has prescribed under the law but at the same time, it is well settled that the prosecution or defence cannot be allowed to fill up the lacuna in their case by way of recalling any witness. The facts of the case of Mannan (supra) are altogether different as in that case, prosecution had failed to cross-examine the Investigating Officer in relation to a statement given to him by one of the witnesses during investigation. Here in the present case, the petitioner is claiming to recall the prosecution witness because some of the questions were not put to him during his crossexamination. 8. The Hon'ble Supreme Court in the case of Natasha Singh (supra) has observed as under in Para No.14:- ''The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, 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. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred 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 great caution and circumspection. The very use of words such as 'any Court', 'at any stage, or 'or any enquiry, trial or other proceedings, 'any person and 'any such person clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of said witness is in fact, essential to the just decision of the case.'' 9. In view of the principle laid down by the Hon'ble Supreme Court, I do not find any illegality in the order impugned passed by the trial court. Hence, this criminal misc. petition under section 482 Cr.P.C. is dismissed.