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2024 DIGILAW 489 (AP)

Inturi Narayana v. State of Andhra Pradesh

2024-04-24

K.SREENIVASA REDDY

body2024
ORDER K Sreenivasa Reddy, J. - This Criminal Petition is filed challenging the Order dated 08.02.2024 in Crl.M.P.No.168 of 2024 in S.C. No.63 of 2018 on the file of the Principal Sessions Judge, Kurnool. 2. The Sub Divisional Police Officer, Kurnool filed a charge sheet as against 2nd respondent/A.1 and another, and the same was taken on file as S.C.No.63 of 2018 on the file of the Principal Sessions Judge, Kurnool. The Sessions Case is at the stage of arguments. At that stage, State filed a petition in Crl.M.P.No.168 of 2024 in the said Sessions Case, under Section 311 CrPC seeking to recall P.W.4-Dr.Allam Vasanth Kumar, P.W.7-Dr.S.Narasimha Reddy and P.W.17-D.V.Ramana Moorthy for further examination for the purpose of marking documents on behalf of the prosecution. The learned Sessions Judge, vide the impugned order, dismissed the petition. Challenging the same, the present Criminal Petition is preferred. 3. Learned counsel for the petitioner contended that 2nd respondent/A.1 is charged for the offences punishable under Sections 498A, 302 and 494 IPC for committing murder of his wife; that during the course of trial, certain important documents could not be marked through the prosecution witnesses; that P.Ws.4 and 7 are Doctors, who issued medical certificates dated 14.03.2015 and 30.03.2015 respectively, and for the purpose of marking those documents, which is germane for establishing the case of prosecution, recalling of P.Ws.4 and 7 is necessary. He further submitted that on a letter addressed by P.W.17-investigating officer to the Mandal Educational Officer, Holagunda mandal (L.W.12), employment details of Smt.B.Parvathi, second wife of 2nd respondent/A.1, and her Aadhar card were secured and marking of those documents is necessary to establish the relationship between them as wife and husband. It is his submission that the power under Section 311 CrPC can be exercised at any stage if the evidence which may be proposed to be tendered by a witness is germane to the issue involved and to for a just decision of the case, and that the learned Sessions Judge erred in observing that purpose of establishing relationship between them is no longer required and erred in dismissing the petition filed by the prosecution. 4. Learned Special Public Prosecutor appearing for 1st respondent-State too concurred with the submissions of the learned counsel for the petitioner. 5. 4. Learned Special Public Prosecutor appearing for 1st respondent-State too concurred with the submissions of the learned counsel for the petitioner. 5. On the other hand, learned senior counsel Sri P.Veera Reddy appearing for learned counsel for 2nd respondent contended that at the time of examination of P.W.4, the medical certificate dated 14.03.2015 was confronted to him and the Court refused to mark the said certificate during trial as it is hit by Section 162 CrPC. The learned senior counsel further submits that the other medical certificate dated 14.03.2015 is not issued based on public record and P.W.4 is not a public servant, and that P.W.7 deposed in his examination-in-chief that he had no knowledge about contents of the said medical certificate. It is submitted by the learned senior counsel that P.W.17 had already deposed in his examination-in-chief about the Service Register and Aadhar card, and earlier P.W.17 was recalled at the instance of the prosecution at the stage of Section 313 CrPC examination of the accused, and hence, there are no grounds to recall the aforesaid witnesses, and the learned Sessions Judge rightly dismissed the application and there are no grounds to interfere with the impugned order. 6. Now, the point that arises for consideration is whether the impugned order passed by the learned Sessions Judge is correct, legal and proper and whether there are any grounds to recall P.Ws.4, 7 and 17 ? 7. In the case on hand, a charge sheet was filed against 2nd respondent/A.1 for the offences punishable under Sections 498A, 302 and 494 IPC, and the same was taken on file as S.C.No.63 of 2018 on the file of the Principal Sessions Judge, Kurnool. The deceased Vishali is wife of 2nd respondent/A.1. At the stage of arguments in the said Sessions Case, an application in Crl.M.P.No.168 of 2024 was filed by the prosecution under Section 311 CrPC seeking to recall P.Ws.4, 7 and 17 for the purpose of marking documents on behalf of the prosecution. The said petition was dismissed by the learned Sessions Judge. 8. At the stage of arguments in the said Sessions Case, an application in Crl.M.P.No.168 of 2024 was filed by the prosecution under Section 311 CrPC seeking to recall P.Ws.4, 7 and 17 for the purpose of marking documents on behalf of the prosecution. The said petition was dismissed by the learned Sessions Judge. 8. Section 311 of the Cr.P.C. contemplates thus: '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 summed as a witness or recall and re-examine any person already examined; and the Court shall summon and examine or recall and respondent-examine any such person if his evidence appears to it to be essential to the just decision of the case.' The aforesaid provision consists of two parts viz. (1) giving discretion to the court to examine the witness at any stage; and (2) the mandatory portion which compels a court to examine a witness if his evidence appears to be essential to the just decision of the case. The Section enables, and in certain circumstances, imposes on the court the duty of summoning witnesses who would have been otherwise brought before the court. 9. There cannot be any dispute that the power under Section 311 CrPC is a vast one. This power can be exercised at any stage of the trial. Such a power should be exercised provided the evidence which may be tendered by a witness is germane to the issue involved, or if proper evidence is not adduced or relevant material is not brought on record due to any inadvertence. It hardly needs to be emphasized that power under Section 311 CrPC should be exercised for the just decision of the case. The wide discretion conferred on the Court to summon a witness must be exercised judicially, as wider the power, the greater is the necessity for application of the judicial mind. Whether to exercise the power or not, would depend upon the facts and circumstances of each case. The power to summon any person as a witness can be exercised if the Court comes to the conclusion that examination of the said witness is essential for just decision of the case. 10. Whether to exercise the power or not, would depend upon the facts and circumstances of each case. The power to summon any person as a witness can be exercised if the Court comes to the conclusion that examination of the said witness is essential for just decision of the case. 10. Now, it has to be seen whether the evidence now sought to be adduced by the prosecution by recalling P.Ws.4, 7 and 17 is germane to the issue involved and is required for arriving at a just decision of the case, and whether the said evidence could not be brought on record due to any inadvertence by the prosecution. 11. It is pertinent to refer to a decision of the Hon'ble Supreme Court in Varsha Garg v. State of Madhya Pradesh, Judgment dated 08.08.2022 in Criminal Appeal No.1021 of 2022 wherein it is held thus: 'The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised whenever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.' 'The relevance of the decoding register clearly emerges from the above statement of PW-41. Hence, the effort of the prosecution to produce the decoding register which is a crucial and vital piece of evidence ought not to have been obstructed. In terms of the provisions of Section 311, the summoning of the witness for the purpose of producing the decoding register was essential for the just decision of the case. 43. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311. 44. 43. Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311. 44. In the decision in Zahira Habibullah Sheikh v. State of Gujarat, which was more recently reiterated in Godrej Pacific Tech. Ltd. v. Computer Joint India Ltd., the Court specifically dealt with this objection and observed that the resultant filling of loopholes on account of allowing an application under Section 311 is merely a subsidiary factor and the Court's determination of the application should only be based on the test of the essentiality of the evidence. It noted that: '28. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be 'filling of loopholes'. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. 51. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Section 311 which allows the power to be exercised at any stage and held that: '44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The Court while reiterating the principle enunciated in Mohanlal Shamji Soni (supra) stressed upon the wide ambit of Section 311 which allows the power to be exercised at any stage and held that: '44. The power of the court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. : (i) giving a discretion to the court to examine the witness at any stage, and (ii) the mandatory portion which compels the court to examine a witness if his evidence appears to be essential to the just decision of the court. Though the discretion given to the court is very wide, the very width requires a corresponding caution. In Mohanlal v. Union of India this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the words such as, 'any court', 'at any stage', or 'any enquiry or trial or other proceedings', 'any person' and 'any such person' clearly spells out that the section has expressed in the widest-possible terms and do not limit the discretion of the court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case, 'essential' to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the section is to enable the court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the court feels that there is necessity to act in terms of Section 311 but only to sub-serve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. (emphasis supplied) 52. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. (emphasis supplied) 52. While reiterating the decisions of this Court in Karnel Singh v. State of M.P., Paras Yadav v. State of Bihar, Ram Bihari Yadav v. State of Bihar and Amar Singh v. Balwinder Singh this Court held that the court may interfere even at the stage of appeal: '64. It is no doubt true that the accused persons have been acquitted by the trial court and the acquittal has been upheld, but if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of the law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on the legal process and the resultant decisions of courts - coram non judis and non est. There is, therefore, every justification to call for interference in these appeals.' 53. For the above reasons, we have come to the conclusion that the decision of the High Court which is impugned in the appeal is unsustainable. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 8 April 2022 in Misc. Criminal Case No. 57152 of 2021 as well as the order of the Second Additional Session Judge, Dr. Ambedkar Nagar, District Indore dated 13 November 2021 in Sessions Trial 227 of 2016 dismissing the application filed by the prosecution. The application filed by the prosecution for the production of the decoding registers and for the summoning of the witnesses of the cellular companies for that purpose is allowed. The Second Additional Sessions Judge, Dr. Ambedkar Nagar, District Indore is directed to conclude Sessions Trial No. 227 of 2016 by 31 October 2022.' 12. The first witness sought to be recalled by the prosecution is P.W.4. The purpose for which P.W.4 is sought to be recalled is to elicit the particulars of the treatment given to the deceased on 10.03.2015 in Vijaya Durga Cardiac Hospital, Kurnool and the medical certificate dated 14.03.2015. P.W.4 is a Senior Cardiologist in Kurnool. The first witness sought to be recalled by the prosecution is P.W.4. The purpose for which P.W.4 is sought to be recalled is to elicit the particulars of the treatment given to the deceased on 10.03.2015 in Vijaya Durga Cardiac Hospital, Kurnool and the medical certificate dated 14.03.2015. P.W.4 is a Senior Cardiologist in Kurnool. On this aspect, it is the contention of the learned senior counsel appearing for 2nd respondent that when the said document was sought to be marked by the Public Prosecutor, the trial Court did not mark the said document since the said Certificate was collected from the witness during the course of investigation and it contains signatures of the witness and it was hit by Section 162 CrPC. Further, as observed by the learned Sessions Judge, the contents of the said medical certificate were covered in cross-examination of P.W.4. 13. The second witness sought to be recalled by the prosecution is P.W.7. The purpose for which P.W.7 is sought to be recalled is to confront contents of medical certificate issued by him on 30.03.2015. P.W.7 is a Doctor in S.V.S. Hospital, Allagadda town. On this aspect, it is the contention of the learned senior counsel appearing for 2 nd respondent that on 19.7.2023, P.W.7 deposed that he has no personal knowledge about the document dated 30.3.2015 and he stated that he only gave instructions to the staff to verify the details of delivery of Smt. B. Parvathi, and that the said document is not a medical certificate, but it is a discharge card, original of which is available with patient, and that P.W.7 did not depose that he discharged the patient Smt. B. Parvathi and issued discharge card. A perusal of his evidence shows that he deposed that he has no personal knowledge about the medical certificate dated 30.03.2015. Therefore, when the document was already confronted to P.W.7 and when he expressed his lack of personal knowledge about the contents of the document, recalling of P.W.7 for the purpose sought by the prosecution, does not serve any purpose. 14. The last witness sought to be recalled by the prosecution is P.W.17, who is the investigating officer, for the purpose of marking regular employment details of Smt. B. Parvathi and her Aadhar card, issued by L.W.12-Syed Mahaboob John, Mandal Educational Officer, Holagunda mandal, Kurnool district. 14. The last witness sought to be recalled by the prosecution is P.W.17, who is the investigating officer, for the purpose of marking regular employment details of Smt. B. Parvathi and her Aadhar card, issued by L.W.12-Syed Mahaboob John, Mandal Educational Officer, Holagunda mandal, Kurnool district. On this aspect, it is the contention of the learned senior counsel appearing for 2 nd respondent that the prosecution is not diligent in adducing evidence with regard to the said documents though P.W.17 was already recalled once, and that L.W.12-Syed Mahaboob John, Mandal Educational Officer who issued the same is no more, and P.W.13, who was examined for identifying the signatures on those documents, could not identify anything. The purpose of summoning the proposed witnesses is to establish the relationship between 2nd respondent/A.1 and Smt. B. Parvathi, who are none other than husband and wife, and that they conspired together to do away the life of the deceased. Admittedly, charge sheet was filed against the said Smt. B. Parvathi, who is arrayed as A.2, for the offence punishable under Section 494 IPC. She was discharged from the case as per the Order passed by this Court dated 07.05.2020 in Criminal Revision Case No. 1116 of 2019. No useful purpose will be served if the proposed witnesses are recalled and examined. The learned Sessions Judge dismissed the petition observing that the prosecution took all precautions and marked documents in support of its case at the time of recording the evidence and there are no grounds to recall the proposed witnesses. I do not see any infirmity in the said order. The Criminal Petition is devoid of merits and is liable to be dismissed. 15. In the result, the Criminal Petition is dismissed. Miscellaneous petitions, if any pending, in the Criminal Petition, shall stand closed.