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2024 DIGILAW 227 (RAJ)

Ramkaran Fagediya v. State of Rajasthan

2024-02-07

SUDESH BANSAL

body2024
ORDER : Sudesh Bansal, J. - Instant criminal Misc. petition under Section 482 Cr.P.C. has been filed by accused petitioners feeling aggrieved by the order dated 01.08.2022 passed in Sessions Case No.1/2020 (State v. Ramkaran & Ors.) by the Court of Additional Sessions Judge No.1, Jhunjhunu allowing the application of prosecution filed under Section 311 Cr.P.C. to recall prosecution witnesses PW-4 Dilip Kumar and PW-5 Azad Khan and further dismissing petitioners' application dated 08.09.2021 to separate the trial of their Sessions Case No.1/2020 from the trial of Sessions Case No.33/2021 (State v. Kishan Fagediya). 2. Relevant facts of the case in brief are that on the complaint lodged by non-petitioner No.2-complainant Buti Ram in respect of murder of his son Manoj Kumar, an FIR No.343/2019 was registered on 01.08.2019 at Police Station Kotwali, Jhunjhunu for offence under Section 302 IPC. 3. During course of investigation, both petitioners were arrested and after completing the investigation against them, charge-sheet No.261/2019 dated 20.10.2019 was filed against petitioners for offence under Sections 323, 365, 302, 201 and 34 IPC. Sessions Case No.1/2020 has been registered and charges for such offences have been framed against both petitioners. The prosecution has examined as many as eight witnesses, PW-4 Dilip Kumar was examined on 10.02.2020 and PW-5 Azad Khan was examined on 02.03.2020, both turned hostile against petitioners. 3.1 Thereafter at this stage, the investigation which was kept pending against another accused Kishan Fagedia under Section 173(8) Cr.P.C was completed and a supplementary charge-sheet No.261-A for offence under Sections 323, 365, 302, 201 and 34 IPC came to be filed against Kishan Fagediya, whereupon Sessions Case No.33/2021 (State v. Kishan Fagediya) has been registered. 3.2 Since Sessions Case No.33/2021 also arises in FIR No.343/2019, this case was directed to be tagged with Sessions Case No.1/2020 vide order dated 29.07.2021. It is to be noted that the order dated 29.07.2021 is not under challenge before this Court. 3.2 Since Sessions Case No.33/2021 also arises in FIR No.343/2019, this case was directed to be tagged with Sessions Case No.1/2020 vide order dated 29.07.2021. It is to be noted that the order dated 29.07.2021 is not under challenge before this Court. 3.3 Petitioners moved a separate application dated 08.09.2021 praying to separate the trial of their Sessions Case No.1/2020 with the trial of Sessions Case No.33/2021, fundamentally on the ground that in Sessions Case No.1/2020, eight prosecution witnesses PW-1 to PW-8 have been examined qua both petitioners, therefore, these witnesses are not required to be examined against them, though would be recalled in Sessions Case No.33/2021 for evidence against accused Kishan Fagediya in support of supplementary charge-sheet No.261-A. 3.4 On the same date i.e. 08.09.2021, prosecution also moved application under Section 311 Cr.P.C., seeking to recall prosecution witnesses PW-4 Dilip Kumar and PW-5 Azad Khan in Sessions Case No.1/2020 for further cross-examination by prosecution against petitioners. The purpose of recalling PW-4 for further cross-examine by the prosecution is, on the CD wherein his statements under Section 161 Cr.P.C. were recorded by the Police and purpose of recalling of the prosecution PW-5 Azad Khan is to Exhibit the Pen Drive wherein his CCTV Footage was recorded by the Police during the investigation. 3.5 The application under Section 311 Cr.P.C. filed by the prosecution was opposed by petitioners and reply was also filed. 3.6 Learned trial Court vide order impugned herein, granted the application of prosecution filed under Section 311 Cr.P.C. and allowed to recall PW-4 and PW-5 for further evidence against petitioners and simultaneously, dismissed the application filed by petitioners to separate the criminal trial of Sessions Case No.33/2021 with Sessions Case of petitioners No.1/2020. Hence, the instant petition by petitioners. 4. Learned Senior Counsel appearing on behalf of petitioners vehemently argued that PW-4 Dilip Kumar and PW-5 Azad Khan have been declared hostile by the prosecution and thereafter, both witnesses were allowed to cross-examin by the prosecution. PW-4 has already been cross-examined, in respect of his statements recorded under Section 161 Cr.P.C. by the Police (Exhibit-P13) and the PW-5 has also been cross-examined, in respect of the Pen drive as seizer memo of Pen drive was exhibited (Exhibit-P14). The copy of statements of PW-4 and PW-5 has been placed on record for perusal of this Court. PW-4 has already been cross-examined, in respect of his statements recorded under Section 161 Cr.P.C. by the Police (Exhibit-P13) and the PW-5 has also been cross-examined, in respect of the Pen drive as seizer memo of Pen drive was exhibited (Exhibit-P14). The copy of statements of PW-4 and PW-5 has been placed on record for perusal of this Court. 4.1 Learned Senior Counsel submits that powers under Section 311 Cr.P.C. may not be allowed to be invoked by the prosecution to fill up a lacuna in case of prosecution and to disadvantage of the accused, more so when the CD recording statements of PW-4 under Section 161 Cr.P.C. was available on record at the time of his cross-examination and PW-4 after declaring hostile, was also cross-examined by the prosecution in respect of his statements under Section 161 Cr.P.C. which have been exhibited as Exhibit- P13. As far as PW-5 is concerned, Pen drive was available on record and Seizer memo of Pen drive has been exhibited as Exhibit-P14. Thus, the very purpose of recalling both these witnesses by prosecution is nothing but to fill up/ patch up the lacuna of prosecution evidence, if any. Therefore, the impugned order allowing application under Section 311 Cr.P.C. is beyond scope of the provision and leads injustice with petitioners, hence same be quashed and application be dismissed. 4.2 Further learned Senior Counsel has argued that in the Sessions Case No.1/2020 against petitioners as many as eight prosecution witnesses have been examined whereas these prosecution witnesses would be summoned in Sessions Case No.33/2021 against another accused namely Kishan Fagediya, therefore, the trial of Sessions Case No.1/2020 be separated. 5. Learned counsel for the complainant and learned Public Prosecutor oppose the petition and submit that learned trial Court has not committed any illegality and jurisdictional error in allowing the application under Section 311 Cr.P.C. of prosecution and thus, have supported the impugned order praying to reject the present petition. 6. Heard. Considered. 7. It is no more res integra that powers under Section 311 Cr.P.C. must be invoked by the Court with care, caution and circumspection that too after assigning the strong and valid reasons to justify that summoning/ recalling witnesses is essential for the just decision of the case and to meed ends of justice. 6. Heard. Considered. 7. It is no more res integra that powers under Section 311 Cr.P.C. must be invoked by the Court with care, caution and circumspection that too after assigning the strong and valid reasons to justify that summoning/ recalling witnesses is essential for the just decision of the case and to meed ends of justice. It is also well settled that an application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Although, it is true that the aim and object of the criminal trial is to discover the truth and the provision of Section 311 Cr.P.C. can be allowed to be resorted to strengthen the arms of courts in its effort to unearth the truth, however such powers has to be exercised by Courts after taking into consideration facts and circumstances of each case, that too not in an ordinary course of manner but with care and circumspection, after assigning the strong reasons. 8. To buttress such proposition of law, judgments of Hon'ble Supreme Court delivered in case of Natasha Singh v. CBI [ (2013) 5 SCC 741 ] and Swapan Kumar Chatterjee v. Central Bureau of Investigation [ (2019) 14 SCC 328 ], may be referred. 9. It is clear from the record as also from the application of Section 311 Cr.P.C. filed by the prosecution that statements of PW- 4 Dilip Kumar were recorded on 10.02.2020 in Sessions Case No. 1/2020 against petitioners. He was declared hostile by the prosecution and was allowed to be cross-examined by the prosecution. Court statements of PW-4 recorded on 10.02.2020 are available on record. In cross-examination, prosecution asked him about his statements recorded under Section 161 Cr.P.C. before the Police and such statements was exhibited as PW-13. It is an admitted fact that the alleged CD wherein his statements under Section 161 Cr.P.C. have been said to be recorded, was available on record at that point of time. Now prosecution intends to invoke powers under Section 311 Cr.P.C. to recall the PW-4, for the purpose of cross-examination, after showing the CD which admittedly was not referred to him when he was cross-examined by the prosecution on 10.02.2020. Now prosecution intends to invoke powers under Section 311 Cr.P.C. to recall the PW-4, for the purpose of cross-examination, after showing the CD which admittedly was not referred to him when he was cross-examined by the prosecution on 10.02.2020. It is admitted case of prosecution that this CD was left to be referred, in cross-examination of PW-4. 10. In respect of PW-5-Azad Khan, his statements were recorded on 02.03.2020 in Sessions Case No.1/2020 against petitioners. He was also declared hostile by the prosecution and was permitted to cross-examine by the prosecution. In cross-examination, Pen drive was exhibited as PW-14 and he was thoroughly cross-examined. Now the prosecution wants to recall PW-5 for further cross-examination after playing the Pen drive before him which was undisputedly available on record and was not chosen to play before PW-5 during his cross-examination on 02.03.2020. 11. Perusal of the application under Section 311 Cr.P.C. filed by the prosecution, nowhere depicts the reason that how and in what manner the further cross-examination of PW-4 Dilip Kumar and PW-5 Azad Khan by the prosecution is necessary for just decision of Sessions Case No.1/2020. In the order impugned, the Trial Court has not assigned any strong and valid reason to recall PW-4 and PW-5 in Sessions Case No.1/2020, who have already been declared hostile and have been allowed to cross-examine by the prosecution. The Trial Court has not assigned any reasons that recalling of PW-4 and PW-5 for further cross-examination is essential for just decision of the case. If for the sake of argument, it is assumed that PW-4 and PW-5 are allowed to be recalled in compliance of the impugned order and allowed to be cross-examined by the prosecution, after playing the CD and Pen drvie in respect of CCTV footage respectively in front of them, obviously same would fall to cover up the prosecution evidence against accused persons, which was not done by the prosecution itself, despite availability of the CD and Pen derive of CCTV Footage on record. In the guise of showing it an inadvertent error on the part of the prosecution, accused persons may not be allowed to put in disadvantageous position. Certainly, PW-4 and PW-5 who have been declared hostile, against petitioners, their evidence would be read as it is and may not be allowed to be improved by the prosecution to fill up/ fetch up the latches, if any. 12. Certainly, PW-4 and PW-5 who have been declared hostile, against petitioners, their evidence would be read as it is and may not be allowed to be improved by the prosecution to fill up/ fetch up the latches, if any. 12. In such facts and circumstances, the impugned order to the extent of allowing to recall PW-4 and P-5 does not meet with the parameters required to consider, while exercising power under Section 311 Cr.p.C. and if the impugned order, to this extent is sustained, would amounts to giving an unfair advantage to the prosecution against petitioners and petitioners may be put to a disadvantageous position. Thus, the order to this extent, to meet ends of justice, deserves to be quashed. 13. As far as application dated 08.09.2021 filed by petitioners to separate the trial of Sessions Case No.1/2020 from Sessions Case No.33/2021 is concerned, the Trial Court passed the order dated 29.07.2021 to tag file of Sessions Case No.33/2021 to continue with the trial of Sessions Case No.1/2020; both arise out of same FIR and involves the same incident of murder of complainant's son Manoj Kumar and all three accused persons are facing charges for offence under Sections 323, 365, 302, 201 and 34 IPC. The order dated 29.07.2021 undisputedly has never been challenged. Further, while dismissing the application of petitioners, learned Trial Court in the impugned order has clearly observed that the prosecution witnesses in both cases are common and only two witnesses are additional in Sessions Case No.33/2021. Thus, the trial Court has recorded reasons to proceed with the trial of both Sessions Case together, which seems to be just and proper to avoid contradictory decisions. As far as prosecution witnesses PW-1 to PW-8 who have already been examined in Sessions Case No.1/2020 against petitioners, if would be recalled for recording their evidence against Kishan Fagediya, obviously the case of petitioners would not be prejudiced by such evidence as the evidence of such witnesses against petitioners have already been recorded. 14. As a final result, in view of discussions and reasons made hereinabove, the order impugned, to the extent of recalling the prosecution witnesses PW-4 Dilip Kumar and PW-5 Azad Khan in Sessions Case No.1/2020 against petitioners, is quashed, however in respect of dismissing the application of petitioners dated 08.09.2021 is maintained. 15. Accordingly, the criminal Misc. petition stands disposed of. 16. 15. Accordingly, the criminal Misc. petition stands disposed of. 16. Stay application and any other pending application, if any, stand disposed of.