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2023 DIGILAW 807 (ALL)

Gyan Chandra v. State of U. P.

2023-03-24

UMESH CHANDRA SHARMA

body2023
JUDGMENT : 1. Heard Sri Mohammad Firoz Khan, learned counsel for the applicants, Sri Pankaj Kumar Tripathi, learned Additional Government Advocate for the State and perused the record. 2. This application u/s 482 Cr.P.C has been filed by all three accused persons Gyan Chandra, Deshraj and Gopi @ Ashok Kumar, for quashing the impugned order dated 28th January, 2016 passed by the Additional District & Sessions Judge / F.T.C, Kaushambi in S.T No. 07 of 2015 - State Vs. Gyan Chandra and others, under Sections 363, 366, 376 (2) (H), 504 I.P.C and 3/4 POCSO Act, Police Station - Sarai Akil, Distrit Kaushambi, arising out Case Crime No. 257 of 2013, by which the Trial Court rejected the application under Section 311 Cr.P.C for summoning the victim P.W. 2 for cross-examination. 3. The brief facts of the case are that the first informant Smt. Rampati W/o Lavkush, lodged an F.I.R on 07.09.2013, regarding the incident dated 05.09.2013 that on the fateful day she had gone to the field for work leaving the victim (her daughter) aged about 14 years, student of Class-VIII alone in her house and when she returned back she found that her daughter was not present and the household articles were disordered. Accused-applicant Gyan Chandra S/o Roshan Lal of the neighbourhood was also missing. Cash amount Rs.10,000/-, a golden chain, golden Mangalsutra, two silver anklet, and a bank A.T.M Card of her husband of Union Bank of India were also missing. She apprehended that accused-Gyan Chandra, Deshraj and Gopi @ Ashok Kumar have lured her daughter and have taken her away. A few days back there was a dispute with Gyan Chandra, who had threatened to look into it and to insult her in the society. She searched out her daughter but could not find, hence report/information was lodged. 4. Contrary to the allegations levelled in the F.I.R, it is averred by the applicants that applicant no. 1 and the victim were consenting party and had fallen in love to each other and in this way both passed about two months eleven days with each other, they also got married and had also prepared marriage agreement (Annexure No. 2) on 25.11.2012 at Kaushambi. 5. The I.O. has submitted charge-sheet wrongly. 1 and the victim were consenting party and had fallen in love to each other and in this way both passed about two months eleven days with each other, they also got married and had also prepared marriage agreement (Annexure No. 2) on 25.11.2012 at Kaushambi. 5. The I.O. has submitted charge-sheet wrongly. During the trial all the relevant witnesses have been examined, but the applicants were provided only a single date for cross-examination of the victim, on the said date due to illness of the counsel was not in a position to cross-examine, hence an adjournment application was moved, but the learned trial court without giving any opportunity for cross-examination, rejected the application on 03.02.2015. Certified copy of the relevant order-sheet since 13.01.2015 to 10.03.2016 is being annexed as Annexure no. 3 to the affidavit. 6. An application under Section 311 Cr.P.C. was moved on 24.12.2015 before the trial court for providing opportunity to cross-examination of the victim P.W. 2, which is annexed as Annexure no. 4 to this affidavit, but it was rejected on 28th January, 2016 without considering the facts and circumstances of the case and without giving any weight to the application. The applicants are not willing to delay the trial, but as they are behind the bar and the co-accused applicant no. 3 was in Haryana Jail, since the victim P.W 2 is the main witness, hence her cross-examination is necessary for a fair trial and proper adjudication. Applicant no. 1 and victim are major and they have solemnized their marriage at their own sweet-will. After recovery and arrest the victim was sent to their parents and applicant no. 1 was sent to Jail. The order dated 28.01.2016 passed by the trial court is arbitrary and perverse and is liable to be quashed. Hence, the application be allowed and an opportunity be provided to cross examine the victim P.W. 2. 7. The State has filed counter affidavit no. 02 of 2016 and has alleged that the contents of the application are not correct, the victim was a minor girl aged about 15 years, hence no question arises to give consent to the applicant no. 1, he had abducted the victim minor daughter of opposite party no. 2 and committed the alleged offence. The I.O. has rightly submitted the charge-sheet. 1, he had abducted the victim minor daughter of opposite party no. 2 and committed the alleged offence. The I.O. has rightly submitted the charge-sheet. The Applicants were provided an opportunity to cross-examination, but they are continuously lingering on the trial and are also threatening to the O.P and the victim, they had surrendered/arrested by the police. On the direction of the Hon'ble Court on the application of O.P. no. 2 with regard to fair investigation, the charge-sheet had been submitted. 8. Applicants have political background, two accused person are still absconding, the trial court has rightly rejected the application as the applicants were applying delay tactic to delay the trial inspite of specific direction of the Apex Court for speedy trial of an offence under Section 376 (2) (H) I.P.C, hence the application be rejected. 9. No rejoinder affidavit has been filed by the applicants, hence heard both the parties and perused the record. 10. From perusal of the record, it transpires that on 13th January, 2015 only accused Gyan Chandra and Deshraj were present, accused - Gopi @ Ashok Kumar was not present in the court, even then evidence of P.W 1 was recorded. 11. On 03rd February, 2015, only in presence of Gyan Chandra and Deshraj and in absence of accused Gopi @ Ashok Kumar, (languishing in Gurgaon Jail Haryana), examination-in-chief and evidence of the prosecutrix was recorded and when the adjournment application 29-B was produced, the same was rejected by the then Presiding Officer. According to this Court in absence of one co-accused - Gopy @ Ashok Kumar and if no exemption application on his behalf was moved, the trial court was not competent enough to record the evidence of the prosecutrix. In the aforesaid circumstances, it was duty of the trial court to ensure the presence of all the three accused persons first and only in present of all the accused persons or in case if they are exempted through counsel, evidence of the prosecutrix or any other witness could be recorded, but the learned trial court besides applying the Rules of examination enumerated in Cr.P.C and the Indian Evidence Act, not only recorded the evidence of prosecutrix, but also closed her cross-examination. 12. 12. From perusal of the order-sheet, it also reveals that when the witnesses were not present, the learned trial court adjourned the case easily without seeking any adjournment and on 21.04.2015, he recorded statements of P.W. Nos. 3 and 4 only in present of accused Gyan Chandra and Deshraj and in absence of co-accused Ashok Kumar. 13. This Court is of the view that the learned trial court has acted with manifest error in recording the evidence. Further on 16.06.2015, the learned trial court has recorded the statements of P.W 6 and 7 in absence of co-accused - Gopi @ Ashok Kumar. It was also improper exercise of the power by the trial court. 14. It transpires that on 16.06.2015 an application 36-B was moved by the prosecution under Section 319 Cr.P.C., which would have been in respect of summoning of some so called left accused persons. On 09.7.2015, the application 36-B has been disposed of, but it is not known as to whether it was allowed or rejected, however on 05.11.2015 in presence of all the accused persons, the statement of P.W. 1 was again recorded (if there is no clerical mistake regarding number of witnesses). On 03.12.2015 when the accused persons moved 42-B application for recalling of witness P.W. 2, the prosecutrix, the same was rejected on 28th January, 2016, which has been challenged before this Court. 15. Statement of P.W. 2 is not before this Court, hence this Court does not know as to whether the witness has supported the prosecution version or not. As per Chapter X of the Indian Evidence Act, 1872, if an examination-in-chief of the witnesses have been recorded, according to Section 138 so examined witnesses would be cross-examined (if the adverse party so desires) and the witnesses may be re-examined (if the party calling him, so desires). 16. From the above discussions, it is very much clear that the victim no. 2 could not be cross-examined by the accused persons, who are facing the trial. The application had been moved during the course of examination of the witnesses. It has already been pointed out that the learned trial court has illegally recorded the evidence of the witnesses in absence of co-accused - Gopi @ Ashok Kumar. 2 could not be cross-examined by the accused persons, who are facing the trial. The application had been moved during the course of examination of the witnesses. It has already been pointed out that the learned trial court has illegally recorded the evidence of the witnesses in absence of co-accused - Gopi @ Ashok Kumar. It could not be established that on the said dates any exemption application on behalf of co-accused Gopy @ Ashok Kumar was produced and the same was allowed by the trial court. It is also observed that the trial of all the three accused persons were cumulatively going on and the case/file of accused - Gopi @ Ashok Kumar had not been separated. 17. The impugned order discloses the incorporation of rulings by the Presiding Officer of his choice, without considering that it was a matter of examination of the witnesses rather the matter of Section 311 Cr.P.C. It is crystal clear that the trial court has not provided proper opportunity and equal protection of law to the defence side while several dates have been given to the prosecution for examination of the witnesses without any adjournment, the learned trial court closed the cross-examination same day, rejecting the adjournment application of the defence, and did not bother that the evidence of victim P.W. 2 has been recorded in absence of co-accused Gopi @ Ashok Kumar. It is duty of the trial court to record the demenure of the victim and the accused, during the trial. This court is of the view that at the time of recording of the evidence of the prosecutrix the presence of the accused persons was very much necessary. 18. It is also duty of the public prosecutor to ensure as to whether the accused is present in the court or not during the examination of the witness. It appears that neither the trial judge nor the public prosecutor performed their duties well. Learned trial judge could not understand the abstracts behind the section in which the accused persons had moved application to recall the witness for cross examination. He also could not consider that two accused persons were in District Jail and one accused Gopi @ Ashok Kumar was in Gurgaon Jail and for a accused, who is languishing in jail, it becomes very problematic and tedious job to prosecute or defend the case. He also could not consider that two accused persons were in District Jail and one accused Gopi @ Ashok Kumar was in Gurgaon Jail and for a accused, who is languishing in jail, it becomes very problematic and tedious job to prosecute or defend the case. Generally they are unable to pay fee and draw proper attention of the counsel and the Court. 19. When all the three accused persons gathered together, they moved re-call application during the course of trial and before the closer of the prosecution evidence. The trial court referring some rulings of his choice, rejected the application in the aforesaid circumstances for which he was responsible. 20. From the above discussion, it has been established that the trial court was not doing fair trial in accordance with the code of criminal procedure and the Indian Evidence Act. Section 311 Cr.P.C, 1973, is as under : - "Section 311 in The Code Of Criminal Procedure, 1973. 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." 21. From the above, it is very much clear that there are two part of this Section. According to first part of the Section, the Court can exercise the power :- (1) to summon any person as a witness, or. (2) to examine any persons in attendance, though not summoned as a witness, or, (3) to recall and re-examine any person already examined. The second part, which is mandatory and imposes an obligation on the Court:- (1) to summon and examine, or (2) to recall and re-examine any such person, if his evidence appears to be essential to the just decision of the case. 22. Since the victim P.W. 2 was the material witness, therefore to provide full opportunity to cross-examine such witness was the duty of the trial court. 23. In Raja Ram Prasad Yadav Vs. State of Bihar and Anr. 22. Since the victim P.W. 2 was the material witness, therefore to provide full opportunity to cross-examine such witness was the duty of the trial court. 23. In Raja Ram Prasad Yadav Vs. State of Bihar and Anr. A.I.R. 2013 (SC) 3081, it has been held that it is, therefore imperative that invocation of Section 311 Cr.P.C and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purport of the said provisions, namely, for achieving a just decision of the case. The power vested under the said provisions is made available to any court at any stage in any inquiry or trial or other proceedings initiated under the code for the purpose of summoning any person as a witness or for examining any persons in attendance, even though not summoned as witnesses or to re-call or re-examine any person in attendance. In so far as recalling and re-examining of any person already examined, the court must necessarily consider and ensure that such re-call and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. 24. In Natasha Singh Vs. C.B.I. (State) 2013 Cr.L.J. 3346 (SC), it has been held that fair trial entails the interest of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunity to the persons concerned. To adduce evidence in support of the defence is a valuable right. Denial of such right would amount to denial of a fair trial. 25. In Dalveer Singh Vs. State of Rajasthan 2013 Cr.L.J 3064, it is held that where the counsel of the accused failed to cross-examine the prosecution witness, the accused could not be made to suffer because of mistake of his counsel in not cross examining the said witness, hence application for re-calling of the witnesses was allowed. 26. In Sankat Mohan Prasad Vs. State of U.P. 2004 ACC 933 (Alld.) this Court held that where for the some reason or the other, counsel for the accused could not cross-examine the prosecution witnesses, the concerned court may re-call such witnesses for cross-examination exercising the power under Section 311 Cr.P.C. 27. 26. In Sankat Mohan Prasad Vs. State of U.P. 2004 ACC 933 (Alld.) this Court held that where for the some reason or the other, counsel for the accused could not cross-examine the prosecution witnesses, the concerned court may re-call such witnesses for cross-examination exercising the power under Section 311 Cr.P.C. 27. On the basis of above discussions it is concluded that the accused persons have been illegally denied the opportunity of cross-examination by the then trial judge. It is the duty of the court to examine the essential material witness in due course of law. The cause of justice would only be served after examining the material witnesses in right perspective after giving due opportunity of cross-examination to the defence. 28. On the above discussion, this Court comes to the conclusion that the learned trial court had committed manifest error during the course of trial in recording the evidence and has proceeded with the case in harried manner in violation of the principles of natural justice and fair trial. The impugned order is not sustainable in the eye of law and deserves to be quashed. ORDER (a) This Application U/s 482 Cr.P.C is allowed. (b) The impugned order dated 28th January, 2016, passed by the concerned trial court is hereby quashed. (c) The learned trial court is directed to re-call the victim P.W. 2 for her cross-examination on behalf of all the three accused persons. (d) Let a certified copy of this order be sent to the concerned court for its compliance immediately.