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2023 DIGILAW 110 (ORI)

Bikram Keshari Mishra v. State of Odisha

2023-01-19

R.K.PATTANAIK

body2023
JUDGMENT R.K. Pattanaik, J. - Heard Mr. Parida, learned counsel for the petitioner and Mr. Mohapatra, learned counsel for the opposite party State. 2. Instant petition under Section 482 Cr.P.C. is filed by the petitioner assailing the impugned order dated 21st December, 2022 passed in T.R. Case No.652 of 2019 corresponding to Dhauli P.S. Case No.171 of 2019 by the learned District and Sessions Jude, Khurda at Bhubaneswar whereby an application under Section 311 Cr.P.C. for recall and further cross-examination of P.Ws.1,2 & 4 was rejected. 3. A copy of the chargesheet is at Annexure-1. 4. Mr. Parida, learned counsel for the petitioner submits that though P.Ws.1,2 & 4 were examined, cross-examined and discharged in connection with T.R. Case No.652 of 2019, some relevant questions could not be put to them and confronted and therefore, their recall was applied for in terms thereof, however, the learned Sessions court rejected the same vide Annexure-4. It is further submitted that all the three witnesses are material to the case being related to the victim deceased being her sisters and there has been no inordinate delay in applying for recall as by settled law even at any stage of the proceeding such is maintainable. While contending so, Mr. Parida refers to the copy of the application filed under Section 311 Cr.P.C. as at Annexure-3 and also the questionnaire detailed therein. It is lastly submitted that questions are related to the UD proceeding and other aspects of the case which are connected to the death of the victim and hence, P.Ws.1, 2 & 4 are required to be recalled. 5. Objection is received from Mr. Mishra, learned counsel for the State on the ground that after closure of the prosecution evidence, such an application under Section 311 Cr.P.C. has been moved by the petitioner and in so far as the impugned order under Annexure-4 is concerned, it is justified, all the more when, a similar request had been received earlier in the year 2019 and was rejected. 6. In so far as, the prayer for recall of P.Ws.1, 2 & 4 is concerned, the Court has gone through the depositions of said witnesses as at Annexure-2 in juxtaposition to the application under Section 311 Cr.P.C. with the set of questionnaire in order to find out and ascertain as to if the questions are relevant for such further cross-examination as has been prayed for. As to the allegation vis-à-vis the petitioner, it is made to appear that he was in a relationship with the victim/deceased, who later committed suicide. Initially, leading to registration of UD case and later on receiving the report from the informant, Dhauli P.S. Case No.171 was registered. On a proper reading of the depositions of P.Ws.1, 2 & 4, the Court again finds that all of them have been cross-examined and discharged. By looking at the set of question as mentioned in Annexure-3 more or less connected to the UD proceeding and such other facts related to the event prior and later to the death of the victim, the Court finds that P.W.1 being one of the sisters of the victim has been cross-examined at length but considering the propose and questions intended to be put to P.W.4, who happens to be the eldest of sisters, she should only be called for further cross-examination in the hands of the petitioner. In other words, as to the other two witnesses, namely, P.Ws.1 & 2, the Court does not find any reason to recall them as examination of P.W.4 would suffice and meet the ends of justice. So the conclusion is that notwithstanding closure of prosecution evidence and the discharge of P.Ws.1, 2 & 4 long back, considering the nature of allegations and offence alleged against the petitioner, recall and further cross-examination of P.W.4, a sister of the victim alone to be insisted upon. 7. Accordingly, it is ordered. 8. In the result, CRLMC stands allowed in part. The impugned order under Anenxure-4 passed in T.R. No.652 of 2019 by learned District and Sessions Judge, Khurda at Bhubaneswar is set aside to the extent indicated herein above with a consequential direction for recall of P.W.4 for the purpose of further cross-examination by the petitioner which shall be accomplished and closed on the date of her examination itself without entertaining any such prayer for adjournment and thereafter, to proceed and dispose of the case as per and in accordance with law. 9. A certified copy of this order be granted to the learned counsel for the petitioner in course of the day.