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2023 DIGILAW 2846 (ALL)

Aakash v. State of U. P.

2023-12-16

MANOJ BAJAJ

body2023
JUDGMENT : 1. Aakash-accused has preferred this petition under Section 482 Cr.P.C. to challenge the order dated 11.10.2023 passed by the Additional District and Sessions Judge/Special Judge (POCSO Act), Agra, in Special Case No. 71 of 2014 (State vs. Aakash), under Sections 363, 366, 376 IPC and 7/8 POCSO Act, arising out of Case Crime No. 66 of 2013, Police Station-Nai Ki Mandi, District Agra, whereby his application dated 11.10.2023 filed under Section 311 Cr.P.C. for recalling prosecution witness PW-1 (Victim), for further cross examination has been dismissed. 2. Learned counsel for the applicant has argued that the complainant has falsely implicated the applicant in the above case and during the cross-examination of prosecution witness PW-1 (victim), certain relevant questions were not put to her, therefore, the applicant had moved an application under Section 311 Cr.P.C. seeking recalling of the said witness for her further cross-examination. He submits that the trial court has failed to appreciate the facts and circumstances of the case carefully, particularly the scope of Section 311 Cr.P.C. and proceeded to dismiss the application through the impugned order dated 11.10.2023. He submits that it would be in the interest of justice, if, the applicant is allowed to once again cross examine the prosecution witness PW-1, and it would not at all result in any prejudice to the prosecution. He prays that the impugned order be set aside and his application be allowed. 3. During the course of hearing, it is not disputed by the learned counsel that the application has been moved by the applicant before the trial court after change of the defence counsel. 4. After hearing learned counsel and considering his submissions, this Court does not find any merit in the petition as in the application filed under Section 311 Cr.P.C., there is no mention that the previous counsel of the applicant was not pursuing applicant's case sincerely. Besides, it is also not disputed by the learned counsel that the counsel who earlier represented the applicant had cross-examined the prosecution witness PW-1. Further, this Court finds that the deposition of the witness was concluded more than a year back on 2.11.2022, and the application under Section 311 Cr.P.C. is based on the solitary ground that earlier the cross-examination of PW-1 was not conducted properly by the then defence counsel. Further, this Court finds that the deposition of the witness was concluded more than a year back on 2.11.2022, and the application under Section 311 Cr.P.C. is based on the solitary ground that earlier the cross-examination of PW-1 was not conducted properly by the then defence counsel. There is nothing on record to suggest that the examination-in-chief of PW-1 and her cross-examination by the defence counsel was not recorded in accordance with law and further even after recording the complete deposition of the witness, no dissatisfaction, much less any objection was raised by the defence counsel, therefore, it can be safely inferred that the deposition of the witness was recorded by following the procedure of examination of witnesses contained in Indian Evidence Act, 1872. 5. Of course, Section 311 Cr.P.C. vests extraordinary power with the trial court to summon, recall or re-examine any person or witness during any enquiry, trial or other proceedings, but such a power cannot be exercised in a routine or casual manner. In case, the trial court considering the facts and other attending circumstances of the case finds that the exercise of power vested in Section 311 Cr.P.C. is necessary in order to reach the truth, the exercise of such power would be justified. Thus, considering the sole ground raised in the application moved by the applicant seeking recall of PW-1, this Court finds that the trial court has rightly declined the request as this kind of a ground can be raised by accused person(s), with an oblique motive to delay in the trial proceedings. 6. Here, it will be useful to refer the decision by the Punjab and Haryana, High Court dated 07.04.2022 delivered in Baljinder Singh @ Gogi vs. State of Punjab [CRM-M-14140-2022], wherein, while considering the identical issue, the High Court had made the following observations:- "The cross-examination of a witness of an adverse party or a hostile witness is an art and every lawyer as an individual, may have different ways of grilling the witness in order to test the truthfulness and credibility of such deposition recorded during examination-in-chief, so, there cannot be a stereo typed questionnaire to be used by lawyer during cross-examination, as much would also depend upon the answers of the witness. Of-course the cross-examination may appear like a battle between un-equals, where a rustic witness is cross-examined by a lawyer, but the ground that the previous defence lawyer was not skillful or the new lawyer is more refined is not worth acceptance, particularly when there is no suggestion that the previous defence lawyer did not pursue the interest of accused honestly. If, such a ground is accepted for exercise of power under Section 311 Cr.P.C this would not only add delay in conclusion of trial proceedings, but would also put extra burden upon the trial Judge to evaluate the multiple depositions of a witness. Also, the trial Courts have to be very careful while dealing with such type of prayers, and must bear in mind that many a times it has been noticed that the recalled witness retracts from the testimony recorded earlier and it results in damage to the prosecution case." 7. Thus, in view of the above discussion, this Court finds that the trial Court has considered the merits of the application in accordance with law and has rightly refused to exercise the jurisdiction under Section 311 Cr.P.C. The impugned order does not suffer from any illegality or impropriety, therefore, no interference is called for. 8. Dismissed.