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2023 DIGILAW 821 (RAJ)

Mohan Singh v. State of Rajasthan, Through PP

2023-04-13

RAJENDRA PRAKASH SONI

body2023
ORDER 1. The crucial questions involved in the instant petition for determination are whether a trial court can permit lacuna in evidence filled-up and what is meant by 'lacuna' in a case/evidence? It has to be understood before deciding the said question one way or the other. 2. The present Criminal Misc. Petition has been preferred by the petitioner-complainant assailing the order dated 10.03.2021 passed by the learned Additional Sessions Judge (Women Atrocity Cases), Jodhpur Metropolitan in Sessions Case No. 64/2017 titled as State Vs. Dashrath Singh & Ors., whereby the application filed by the accused for re-summoning of Dr. Imran Sheikh (PW-5) was allowed. 3. The respondents No. 2 and 3 are facing trial before the said Court for the offences punishable under Sections 302, 201/511, 304-B and 313 of the Indian Penal Code (for short, 'the IPC') and accused Dashrath singh is in judicial custody since 26.07.2017. 4. As the trial proceeded almost to the end when the prosecution and the defence closed their evidence on 29.01.2021, the case was posted for hearing of final arguments and arguments on behalf of the complainant/prosecution is completed. 5. It appears that the arguments are being heard in piece-meal. 6. On 22.02.2021, an application came to be filed on behalf of the accused seeking permission to re-call and re-examination a witness namely Dr. Imran Sheikh (PW-5). Though the application was stoutly opposed by the prosecution/complainant's counsel, the trial court allowed it in exercise of its powers under Section 311 of the Code and summon was ordered to be issued to the said witness as per impugned order dated 10.03.2021. 7. The learned trial court held that the re-examination of Dr. Imran Sheikh (PW-5) was essential, since the said witness is an important link evidence for the prosecution; it is necessary to conduct a substantial cross-examination of the said witness by the defence counsel for a just decision of the case; many important points and aspects in respect of PMR and medical evidence will be revealed before the Court by giving such permission. According to the learned trial court, a party cannot be penalised for the mistakes of his lawyer; the complainant has failed to show as to how his interest would be prejudiced on recalling of the said witness. Making above observations, the application under Section 311 of the Code was allowed. According to the learned trial court, a party cannot be penalised for the mistakes of his lawyer; the complainant has failed to show as to how his interest would be prejudiced on recalling of the said witness. Making above observations, the application under Section 311 of the Code was allowed. The said order dated 10.03.2021 is assailed in this Misc. Petition. 8. Shri Poonam Chand Solanki, learned counsel for the complainant-petitioner has vehemently contended that the impugned order dated 10.03.2021 is absolutely illegal and amounts to a gross abuse of the process of the Court. He argued that the power under Section 311 of the Code cannot be exercised for filling-up the 'lacuna' in the defence. It is further argued that the trial is pending at the final arguments stage and the arguments on behalf of the complainant-petitioner have already been completed. During the course of final arguments, when he drew the attention of the Court towards many important aspects of the evidence thereafter, the application under Section 311 of the Code has been filed by the defence for the purpose of filling-up the lacuna of his defence. 9. It is further argued that almost all the important witnesses were cross-examined by Shri Dhirendra Singh and Shri Jai Veer Singh Deora, learned former counsels appearing for the accused. On 21.08.2019, Shri Pradeep Choudhary, Advocate has filed his Vakalatanama on behalf of the accused. PW-5 Dr. Imran Sheikh was examined on 11.12.2018 and on that day, no senior counsel was appointed on behalf of the accused who could have cross examined Dr. Imran Sheikh instead of his associate. It is argued that no witness can be recalled for examination on the ground that he was not cross-examined earlier on several important points. The present application has been filed only for the purpose of delaying the matter. Had the defence so desired, the present application could have filed immediately after filing of Vakalatanama by the Advocate Shri Pradeep Choudhary. It was thus, submitted that there was no justification before the trial court to summon the witness Dr. Imran Sheikh (PW-5) for reexamination. He lastly submitted that in view of his submissions, it is clear that the learned Court below has erred in passing the impugned order. In such circumstances, the intervention of this Court is warranted in this case. 10. Imran Sheikh (PW-5) for reexamination. He lastly submitted that in view of his submissions, it is clear that the learned Court below has erred in passing the impugned order. In such circumstances, the intervention of this Court is warranted in this case. 10. Reliance was placed by the learned counsel for the petitioner in support of his arguments on the following judgments:- 1. AG Vs. Shiv Kumar Yadav & Anr. AIR 2015 SC 3501 2. K. Anbazhagan Vs. The Superintendent of Police & Ors. 2004 AIR (SC) 524 3. Nisar Khan @ Guddu & Ors. Vs. State of Uttaranchal 2 SCC (Cri.) 568 4. Umar Mohammad & Ors. Vs. State of Rajasthan 3 SCC (Cri.) 244 5. Ratan Lal Vs. Prahlad Jat 2017 AIR (SC) 5006 6. Chaina Ram & Anr. Vs. State of Rajasthan (1999) Cri.L.R. (Raj.) 533 7. State of Haryana Vs. Ram Mehar & Ors. Etc. Etc. (2016) 3 SCC (Cri.) 577 11. Shri Jagmal Singh Choudhary, learned Senior counsel assisted by Shri Pradeep Choudhary and Ms. Sampati Choudhary appearing on behalf of the accused contended that on the date of recording of the statements of Dr. Imran Sheikh (PW-5), the then Senior Advocate appearing on behalf of the accused was busy in some other Court and due to which, Dr. Imran Sheikh (PW-5) was cross-examined by his associate. In the postmortem report, the cause of death of deceased Smt. Durga Kanwar has been given as 'Asphyxia due to smothering'. Witness Dr. Imran Sheikh has not been cross-examined on many important points and in absence of which, the defence of the accused would be seriously effected therefore, he seeks opportunity under Section 311 of the Code for further cross-examination of Dr. Imran Sheikh (PW-5). He argued that looking to the nature of cross exmination of Dr. Imran Sheikh (PW-5) the ends of justice require that this witness should be recalled for giving a fair opportunity of cross-examination to the accused. Thus, it is submitted that the impugned order passed by the trial Judge calls for no interference by this Court. 12. Learned Sr. counsel for the accused fortified the above made submissions by placing reliance on the following judgments:- 1. Major Singh Vs. State of Rajasthan & Anr. S.B.CRL.M.P. No. 3971/2018, decided on 05.03.2020 2. Pankaj Vs. State D.B. Criminal Appeal No. 21/2018, decided on 11.11.2021 3. Bhagirath Vs. 12. Learned Sr. counsel for the accused fortified the above made submissions by placing reliance on the following judgments:- 1. Major Singh Vs. State of Rajasthan & Anr. S.B.CRL.M.P. No. 3971/2018, decided on 05.03.2020 2. Pankaj Vs. State D.B. Criminal Appeal No. 21/2018, decided on 11.11.2021 3. Bhagirath Vs. State S.B. CRL.M.P. No. 4098/2018, decided on 19.11.2018 13. Heard and considered the arguments of both the parties advanced at Bar. Perused the impugned order and documents filed on record as well as the original case file. 14. Perusal of the record reveals that in the present case, the respondent No.2 and 3 are accused of the crime punishable under Sections 302, 201/511, 304-B and 313 of the IPC and this case is of a very heinous crime like, dowry death and murder. The offences charged are punishable with capital sentence and sentence of life imprisonment. 15. The postmortem report and Doctor's oral statements are very important link evidence in such a serious crime. In order to reach a finding regarding homicidal death, the medical evidence assumes great importance. The examination-in-chief and crossexamination of the witness Dr. Imran Sheikh (PW-5), who conducted the autopsy of the deceased, is going to play a very important role in determining the fate of the case because his statement will bring on record the evidence in respect of various aspects relating to the cause of death of deceased and her physical state/condition at the time of death. The P.M.R. becomes important, where the cause of death and its timing is to be established by the prosecution and it is a matter of controversy. The PMR and oral testimony of the Doctor, who conducted the autopsy needs to be analyzed on the basis of standard medical jurisprudence to reach a possible finding relating to the nature of death being homicidal. 16. A perusal of the cross-examination, part of the statement of Dr. Imran Sheikh (PW-5) is sufficient to satisfy this Court that the questions put to this witness leave much to be desired. 17. The scope and the object of the provision under Section 311 of the Code is to enable the Court to determine the truth and to render a just decision after discovering all the relevant facts and obtaining proper proof of such facts. 17. The scope and the object of the provision under Section 311 of the Code is to enable the Court to determine the truth and to render a just decision after discovering all the relevant facts and obtaining proper proof of such facts. The Court is competent to exercise such powers 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 re-examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 18. It is a common experience in criminal Courts that the opposite counsel would raise objections whenever the Courts are requested to exercise powers under Section 311 of the Code by saying that the Court could not fill-up the lacuna in the case. A 'lacuna' is not to be equated with the fall-out of an over-sight committed by any party during the trial, either in producing relevant material or in eliciting relevant answers from a witness. 19. The adage 'to error is human' is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such latches by mistakes during the course of conducting of a case cannot be understood to be a 'lacuna'. 20. No party in a trial can be fore-closed from correcting the errors, if proper evidence was not adduced and a relevant material was not brought on record due to any inadvertence and the Court should be magnanimous in permitting such mistakes to be rectified. An over-sight in the management of a case, either by the prosecution or by the defence cannot be treated as irreparable lacuna. 21. It is a settled law that for the mistake on the part of the lawyer, a party ought not to be penalised, if the mistake is found to be bonafide and genuine. 22. In other words, where the Court exercises the power under the second part of the provision, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the Court is right in thinking that the additional evidence is needed by it for a just decision of the case. 22. In other words, where the Court exercises the power under the second part of the provision, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the Court is right in thinking that the additional evidence is needed by it for a just decision of the case. It is a cardinal rule of the law of evidence that the best available evidence must be brought before the Court to prove a fact or a point in issue. 23. Thus, in view of this, ordering of re-examination of Dr. Imran Sheikh (PW-5) by trial court was absolutely essential to unfurl the truth and for a just decision of the case. The defence simply intends to substantiate the evidence already available on record, by further examining Dr. Imran Sheikh (PW-5) which cannot be held to be an attempt to fill-up the lacuna left at the trial. 24. This Court cannot, therefore, accept the contention of the learned counsel for the petitioner-complainant as a legal proposition that the power be whittled-down merely on the ground that the defence discovered latches only when the prosecution highlighted them during the course of final arguments. 25. In view of the above analysis, it becomes apparent that the judgments cited by the learned counsel for the petitioner in support of his above arguments do not help the petitioner in any manner because the present case is not a case of any incompetency of former counsel of the accused nor reexamination of the witness after winning over him by threatening or intimidation of Dr. Imran Sheikh (PW-5), since he is not a private person and was working as a Chairman of the Medical Board at the relevant point of time. It is also not a case wherein, re-trial of complete case, by re-summoning of all the witnesses examined, is sought for by invoking provisions under Section 311 of the Code. 26. Coming to the second argument of the learned counsel for the petitioner-complainant with regard to delay in filing of the application, no doubt the application was filed at the state of final arguments of the case but the concept of fair trial cannot be restrained into a time limit, if the contents of the application filed under Section 311 of the Code are found to be reasonable, bonafide and on cogent grounds. There is also no possibility of any prejudice to the prosecution in allowing the application at a belated stage because the accused filing the application himself is in a judicial custody since long. It is mention-worthy that in Section 311 of the Code, the significant expression that occurs is 'at any stage of inquiry or trial or other proceedings under this Code'. It is, however, to be borne in mind that whereas this provisions confers a very wide power on the Court yet, the discretion conferred is to be exercised judiciously. 27. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. The steps by which the trial court has permitted in the present case for re-summoning Dr. Imran Sheikh (PW-5) cannot, therefore, be spurned down nor frowned. 28. It is, therefore, clear that the criminal Court has ample powers to summon any person as a witness or recall and reexamine any such person even if the evidence of both the sides is closed. The jurisdiction of the Court must obviously be dictated by exigency of the situation, fair play and good sense appear to be the safe guidelines. 29. Viewed in the light of above analysis and providing a fair opportunity of cross-examination of Dr. Imran Sheikh ((PW-5) is essential for ensuring a fair trial of the case. Therefore, there is no genuine foundation in the contention of the learned counsel for the petitioner hence, the argument of delay does not hold water. The judgments cited by the learned counsel for the petitioner on the aspect of delay in support of his argument also do not help him in any manner because filing of the present application on behalf of the accused who is in judicial custody for a long time cannot be treated as just to cause delay of the trial. 30. This Court would now consider the third contention of the learned counsel for the petitioner whether the application under Section 311 of the Code was filed by the accused for the sole reason of change of his lawyer? 31. It is not the case of the accused that he has filed the present application due to changing of his lawyers and on this ground that he is seeking recalling of Dr. Imran Sheikh (PW-5). 31. It is not the case of the accused that he has filed the present application due to changing of his lawyers and on this ground that he is seeking recalling of Dr. Imran Sheikh (PW-5). The statements of 12 witnesses had been recorded by the trial court before Shri Pradeep Choudhary, Advocate filed the Vakalatanama on behalf of the accused. Further cross-examination has been sought only from one witness. Rather the case of the accused is that cross-examination of Dr. Imran Sheikh (PW-5) on certain points was left out. Therefore, it cannot be held that ground of change of counsel or incompetency of former counsel were the reasons to file the present application under Section 311 of the Code. The accused would have sought cross-examination of all the witnesses if only reason of change of the Advocate would had been there. 32. Viewed on the above angle, the judgments cited by the learned counsel for the petitioner on this aspect also do not help him in any manner because the present case is not found to be a case in which recall of the witness has been sought due to change of the counsel only. 33. In the case at hand, the learned trial court has recorded an irrefutable satisfaction that further examination of Dr. Imran Sheikh (PW-5) is essential for unfurling the truth in the case and is necessary in the interest of justice. In this view of the matter, this Court is of the opinion that all the pleas raised by the learned counsel for the complainant-petitioner in support of his contention are untenable on the face of the record. 34. In view of the aforesaid discussions, this Court is of the opinion that the challenge made to the impugned order dated 10.03.2021 passed by the learned trial court by way of the instant Criminal Misc. Petition is not sustainable. 35. Resultantly, the present Criminal Misc. Petition being bereft of any force is, hereby, dismissed. The stay petition also stands dismissed.