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2022 DIGILAW 887 (HP)

Satinder Giri v. State of H. P.

2022-12-29

VIVEK SINGH THAKUR

body2022
JUDGMENT : Vivek Singh Thakur, J. Petitioner has approached this Court assailing impugned order dated 07.11.2020, passed by Additional Sessions Judge, Nalagarh, District Solan, H.P., in Trial No.224 of 2016, titled as State of H.P. vs. Satinder Giri & another, whereby an application filed by petitioner, under Section 311 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.PC’) for examining the witness, has been dismissed. 2. Petitioner is facing trial being charge sheeted under Sections 452, 302 and 341 of the Indian Penal Code (in short ‘IPC’). 3. Additional Sessions Judge has rejected the application of the petitioner on the ground that witness proposed to be examined is real brother of the petitioner and he was cited as a prosecution witness in the challan regarding recovery of articles from the spot and his statement was not relevant at belated stage as petitioner-accused was granted opportunity to lead evidence in defence twice, but no witness was desired to be produced by him. It was further concluded by Additional Sessions Judge that application had been filed only to delay trial and, thus, application was dismissed. 4. It is apparent from the record that evidence of the prosecution was closed on 26.09.2019. Statement of accused persons, including the petitioner, under Section 313 Cr.P.C., were recorded on 24.10.2019, wherein no defence witness was intended to be examined by the petitioner-accused persons. Case was listed for arguments, but on 02.01.2020 prosecution filed an application under Sections 173(8) and 311 Cr.P.C., to file FSL Report regarding DNA profiling. The said application was allowed by granting opportunity to accused persons including petitioner to rebut the evidence. Thereafter, statement of accused persons including petitioner was again recorded under Section 313 Cr.P.C., regarding new facts/evidence brought on record and at that time also no defence evidence was led by the accused persons. However, application under Section 311 Cr.P.C. was filed on behalf of the petitioner on 23.09.2020, by intending to examine witness Mohinder Giri on certain points. 5. It is also noticeable that Mohinder Giri was cited as a witness by the prosecution in the final report submitted under Section 173 Cr.P.C., but he was not examined and was given up by the prosecution. 6. Learned Additional Advocate General has opposed prayer made in the petition, for the reasons cited by Additional Sessions Judge for rejecting the application. 7. 6. Learned Additional Advocate General has opposed prayer made in the petition, for the reasons cited by Additional Sessions Judge for rejecting the application. 7. Learned counsel for the petitioner, to substantiate his plea to allow the petition, has referred pronouncement of the Supreme Court in Natasha Singh vs. Central Bureau of Investigation (State), (2013) 5 SCC 741 , by referring following paragraphs:- “16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide: Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376 ; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors., (2004) 4 SCC 158 ; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., (2006) 3 SCC 374 ; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258 ; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136 ; and Sudevanand v. State through C.B.I., (2012) 3 SCC 387 ). 20. v. State of Gujarat & Ors., (2006) 3 SCC 374 ; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258 ; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136 ; and Sudevanand v. State through C.B.I., (2012) 3 SCC 387 ). 20. Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand-writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case.” 8. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case.” 8. Learned counsel for the petitioner has also placed reliance on Manju Devi vs. State of Rajasthan and another, (2019) 6 SCC 203 , by referring following paragraphs:- 8. Having given thoughtful consideration to the rival submissions and having examined record with reference to the law applicable, we find it difficult to approve the orders impugned; and it appears just and proper that the application moved in this matter under Section 311 CrPC be allowed with direction to the Trial Court to ensure that the testimony of the doctor conducting first post-mortem comes on record. 9. Section 311 CrPC reads as under:- "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. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions 1. In Natasha Singh v. CBI (State) : (2013) 5 SCC 741 , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under:- "8. In Natasha Singh v. CBI (State) : (2013) 5 SCC 741 , though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under:- "8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. *** *** **" 15. 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. An application under Section 311 CrPC 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. 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 CrPC 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 the said witness is in fact, essential to the just decision of the case.”” 13. Though it is expected that the trial of a sessions case should proceed with reasonable expedition and pendency of such a matter for about 8-9 years is not desirable but then, the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness.” 9. It has been contended on behalf of the petitioner that Mohinder Giri is a cited witness of the prosecution and petitioner is not introducing any new witness, and relative or brother of the petitioner cannot be held to be incompetent witness for relation with the accused, particularly when prosecution itself has cited him as a witness. It has also been contended that even interested witnesses are permissible to be examined, though with rider that their deposition shall be scrutinized with care and caution for having interest to tilt the case according to their interest. 10. It has also been contended that even interested witnesses are permissible to be examined, though with rider that their deposition shall be scrutinized with care and caution for having interest to tilt the case according to their interest. 10. It has been further contended on behalf of the petitioner that Mohinder Giri is a witness to the documents which have been exhibited as Ex.PW.10/A and Ex.PW.15/A, but he has not been examined by the prosecution by giving up his examination as a witness and, thus, denial of prayer to examine the said witness would amount to unfair trial, as fair trial includes grant of fair and proper opportunities to a person concerned to lead evidence. It has been contended that plea of the State that application has been filed to delay the trial is not sustainable particularly when State itself had filed an application under Section 311 Cr.P.C. when case was listed for arguments and the said application was allowed. 11. Petitioner is facing trial for an offence wherein he can be sentenced for imprisonment of life or with capital punishment. Taking into consideration ratio of law referred in aforesaid pronouncements of the Supreme Court and facts and circumstances of the present case, I am of the opinion that petitioner may be granted an opportunity to examine witness Mohinder Giri, as prayed, on his behalf. 12. In view of above, petition is allowed and order dated 07.11.2020, passed by Additional Sessions Judge, Nalagarh, District Solan, in Trial No.224 of 2016, titled as State of H.P. vs. Satinder Giri and another, is set aside and application filed by the petitioner under Section 311 Cr.P.C., is allowed. Parties are directed to appear before the trial Court on 07.01.2022 and trial Court is directed to fix a date thereafter, for production and examination of witness as proposed in the application and, thereafter, to conclude the trial as expeditiously as possible without causing any further delay. Needless to say that prosecution will be entitled to cross-examine the witness and to exercise its right as permissible under law. 13. Petition stands disposed of in aforesaid terms, so also pending applications, if any.