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2023 DIGILAW 1881 (ALL)

Sunder Lal v. State of U. P.

2023-08-04

DEEPAK VERMA

body2023
JUDGMENT Deepak Verma, J. Heard learned counsel for the applicant and learned AGA for the State. 2. The present 482 Cr.P.C. application has been filed to quash the impugned order dated 15.07.2023 passed by Additional Sessions Judge, Court No.5, Varanasi in Session Trial No.399 of 2019 (State v. Girja Shankar & others) arising out of Case Crime No.722 of 2018, under sections 304B, 498A I.P.C., Police Station Rohaniya, District Varanasi, pending in the court of Additional Sessions Judge, Court No.05, Varanasi and direct the learned trial to summon and examine Pradeep Gaur as a defence witness on behalf of the applicant in Session Trial No.399 of 2019 (State v. Girija Shankar and others). 3. Learned counsel for the applicant submits that FIR was lodged by opposite party no.2 regarding unnatural death at police station Rohaniya, under sections 498A, 304B I.P.C. & Section ¾ Dowry Prohibition Act and as per postmortem and forensic reports, it was found that deceased consumed poison. Thereafter, charge-sheet was submitted against the applicant, who is husband of the deceased and other accused persons under sections 498A & 304B I.P.C. & Section ¾ Dowry Prohibition Act. One Pradeep Kumar @ Pradeep Gaur, brother of the deceased, was shown as witness in the prosecution witness column and was witness of the panchyatnama and statement under section 161 Cr.P.C. was recorded during investigation. Counsel for the applicant next submits that during prosecution witness, application was moved by A.D.G.C.(Crl) that Pradeep Gaur, prosecution witness be discharged for giving evidence as he is influenced by defence and same was allowed by trial court by order dated 04.07.2022. Thereafter, examinations of prosecution witnesses were closed. During defence examination under section 313 Cr.P.C. before trial court, applicant moved application for summoning Pradeep Gaur as defence witness and the application of the applicant was put in file on cost of Rs. 250/-. He next submitted that date was fixed for 27.06.2023 and on that day Pradeep Gaur could not appear and time granted with cost of Rs. 500/-. He further submitted that after putting application of applicant for summoning defence witness court cannot reject his application. 4. Learned counsel for the applicant next submits that in view of the law laid down in Sections 233 Cr.P.C. and 311 Cr.P.C. defence can apply for summoning of any witness for conducting fair trial. 500/-. He further submitted that after putting application of applicant for summoning defence witness court cannot reject his application. 4. Learned counsel for the applicant next submits that in view of the law laid down in Sections 233 Cr.P.C. and 311 Cr.P.C. defence can apply for summoning of any witness for conducting fair trial. Trial court after hearing the parties and placing reliance over the judgment passed by Apex Court in State of M.P. v. Badri Yadav and another reported in (2006) 3 SCC (Cri) 337 accepted the prosecution application of 44 kha and rejected the prayer of the applicant-accused for considering Pradeep Gaur at serial no.5 as defence witness. Learned counsel for the applicant submits that rejection of the prayer of the applicant for summoning Pradeep Gaur as defence witness no.5, is wholly illegal and without application of mind and abuse of the process of the court and applicant's counsel has also placed reliance upon the judgement passed by Hon'ble Apex Court in Varsha Garg v. State of Madhya Pradesh and others reported in AIR 2022 SC 3707 and submitted that in view of the Hon'ble Apex Court judgment, the prosecution witness can be summoned as defence witness. 5. Per contra, learned A.G.A. vehemently opposed the submission of learned counsel for the applicant and submitted that applicant who is accused want to summon Pradeep Gaur as defence witness no.5 was infact prosecution witness and is real brother of the deceased and he has been discharged on the application of A.D.G.C.(Crl), as was not supporting the prosecution case and collided with defence. Trial court has rightly rejected the prayer of the applicant that prosecution witness Pradeep Gaur, being real brother of the victim cannot be summoned as defence witness no.5 after being discharged as prosecution witness. Learned A.D.G.C. (Crl) also on application requested to Court that P.W.-1 Pradeep Gaur can be examined as court witness. Trial court has rightly rejected the application of applicant for producing P.W.-2 as defence witness-5 considering the Hon'ble Apex Court judgment passed in State of M.P. v. Badri Yadav and others, in which Hon'ble Apex Court has held that accused application for compelling any prosecution witness, who had been examined, cross-examined and discharged, to be juxtaposed as defence witness, held, not maintainable. 6. Considered the arguments raised by learned counsel for the applicant, learned AGA and perused the order dated 15.07.2023. 6. Considered the arguments raised by learned counsel for the applicant, learned AGA and perused the order dated 15.07.2023. It is evident that learned magistrate after considering the submission raised by learned counsel for the applicant find out that Pradeep Gaur to whom accused-applicant want to produce as a defence witness, is real brother of deceased and main witness of the prosecution. He was not produced as a prosecution witness as he collided with defence. 7. Application for producing prosecution witness as defence witness by applicant whereas, prosecution witness is the real brother of the deceased, does not disclose fair intention of the applicant. 8. It is admitted law that under section 233 Cr.P.C. after closing of prosecution witness defence/accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reason to be recorded, that such application should be refused on the ground that it is made for vexation or delay or for defeating the end of justice. 9. Both the sections has empowered the court to pass order in view of the sections after considering that order passed under aforesaid section is just and necessary for proper disposal of the case. The provision of aforementioned section also provide that if court consider that order, it passed can reflect or effect the proceeding court shall abstain himself from passing that order. 10. In strength of above-mentioned sections the court has declined to pass order considering that P.W.-2 who was prosecutrix witness but due to influence of accused not supporting the prosecution case and has been requested by learned A.D.G.C. (Crl.) P.W.-2 may be kept as court witness and examine whenever it requires. Learned Advocate has prayed for that at this stage P.W.-2 be discharged as prosecution witness but P.W.-2 can be used as court witness. In view of that P.W.-2 would be considered as prosecution witness though discharged from prosecution witness but has not been discharged from court witness and court can examine him as court witness. As such the submission of counsel for the applicant having no force and cannot pray to produce P.W.,-2 as defence witness. 11. In view of that P.W.-2 would be considered as prosecution witness though discharged from prosecution witness but has not been discharged from court witness and court can examine him as court witness. As such the submission of counsel for the applicant having no force and cannot pray to produce P.W.,-2 as defence witness. 11. Intention of the applicant prima-facie appears that for producing the real brother of the deceased and main prosecution witness, who was discharged by the Court, only to make out a different version in the related case. It is true that he would not depose the clear facts and considering these facts, trial court had rejected. Hon'ble Apex Court also in State of M.P. v. Badri Yadav has held that as prosecution witness, who had been examined and discharged, he cannot be produced as defence witness. Relevant paras 13, 14, 15 & 16 of the said judgment are being quoted below:- "(13) Mr. A.T.M. Rangaramanujam, learned senior counsel for the respondent, however, contended that the accused is entitled to enter upon defence and adduce evidence in support of his case as provided under Section 233 Cr.P.C. particularly Sub-Section (3) of Section 233. Sub-Section (3) of Section 233 reads: - "233 (3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice." (14) Section 233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under Section 311 Cr.P.C., was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233 Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as DWs. Under Section 233 Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as DWs. In the present case PW-8 and PW-9 were juxtaposed as DW-1 and DW-2. This situation is not one what was contemplated by sub-section 3 of Section 233 Cr.P.C. (15) When such frivolous and vexatious petitions are filed, a Judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eyewitnesses on 18.12.1990, cross-examined and discharged. Thereafter, an application under Section 311 Cr.P.C. was rejected. They were recalled purportedly in exercise of power under subsection (3) of Section 233 Cr.P.C. and examined as DW-1 and DW2 on behalf of the accused on 17.7.1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law. (16) In the case of Yakub Ismail Bhai Patel v. State of Gujarat, (2004) 12 SCC 229 in which one of us Dr. AR. Lakshmanan,J. was the author of the judgment, in somewhat similar case to the facts of the present case it was held that once a witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in court on oath by filing affidavit stating that whatever he had deposed before court as PW was not true and was done so at the instance of the police. In that case the evidence of PW-1 was relied upon by the Trial Court and also by the High Court. He was examined by the prosecution as an eyewitness. He also identified the appellants and the co-accused in the Court. After a long lapse of time he filed an affidavit stating that whatever he had stated before the Court was not true and had done so at the instance of the police. In those facts and circumstances this Court in paragraphs 38 and 39 at SCC pp.240- 241 held as under: - "38. After a long lapse of time he filed an affidavit stating that whatever he had stated before the Court was not true and had done so at the instance of the police. In those facts and circumstances this Court in paragraphs 38 and 39 at SCC pp.240- 241 held as under: - "38. Significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before Court as PW 1 was not true and it was so done at the instance of the police". "39. The averments in the affidavit are rightly rejected by the High Court and also the Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in Court on oath. It is pertinent to note that during the intervening period between giving of evidence as PW 1 and filing of affidavit in court later, he was in jail in a narcotic case and that the accused persons were also fellow inmates there." 12. Reliance placed by learned counsel for the applicant on the judgment passed in State of M.P. (supra) is based on entirely different facts and it is not applicable in the present case as dispute relates to the decoding registers merely being additional document required to be able to appreciate the existing evidence in form of call details which was already on record but use codes to signify the location of accused, a crucial detail, which can be decoded only through the decoding registers, the right of the accused to a fair trial is not prejudiced. 13. It is held that under sections 233 Cr.P.C. and 311 Cr.P.C. provisions provides that any witness or a document produced by defence witness must be called for just and proper decision of the case but here the case is entirely different and accused persons want to produce the real brother of the victim, who was main witness of the prosecution. The intention of the defence primafacie appears that prayer for summoning Pradeep Gaur as defence witness is only to defeat the purpose of just decision and to delay the prosecution. 14. Considered the arguments raised by both the parties and after perusal of record, I do not find a good case to be interfered. Trial court order is just and proper. 14. Considered the arguments raised by both the parties and after perusal of record, I do not find a good case to be interfered. Trial court order is just and proper. The present 482 application is dismissed with the aforesaid observations.