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2024 DIGILAW 785 (ALL)

Shiv Mohan v. State of U. P.

2024-03-13

SURENDRA SINGH I

body2024
JUDGMENT : Heard learned counsel for the revisionists, learned counsel for the opposite party No.2 and learned A.G.A. for the State. 2. The present criminal revision has been instituted against the impugned judgement and order dated 11.05.2023 passed by Special Judge (E.C. Act), Fatehpur in S.T. No. 679 of 2020 (State Vs. Shiv Mohan and others) arising out of Case Crime No. 88 of 2020 under sections 323, 504, 304 I.P.C., Police Station- Malwan, District- Fatehpur. 3. By the impugned order, the trial court has rejected the application 16-B filed by the revisionist no. 1 under section 311 Cr.P.C. to summon P.W.1 Balwant Singh for cross-examination. 4. Learned counsel for the revisionists submitted that regarding the incident, an N.C.R. against Raj Kumar and Gore Lal was registered by P.W.1 Balwant Singh. The accused, Shiv Mohan also got registered an F.I.R./N.C.R. No. 46 of 2020 under Section 323, 504 I.P.C., Police Station-Malwan, District- Fatehpur. In the F.I.R./N.C.R. of the alleged incident registered by the revisionist no. 1, his son had received serious injuries in the same incident. It has been also submitted that in the case registered by Balwant Singh, after investigation, charge-sheet has been filed in Case Crime No. 88 of 2020 under Sections 323, 504, 304 I.P.C. against revisionists and two other co-accused persons. It has also been submitted that the revisionist no. 1 has filed an application under Section 311 Cr.P.C. in the court concerned for examination of P.W.1 Balwant Singh, which was rejected. The record was not available and no investigation was done in the aforesaid N.C.R. No. 46 of 2020. Inspite of the order passed in N.C.R., record has been lost in the police station. It has been also submitted that both F.I.R. and N.C.R. relates to the same incident, in which, charge sheet was filed against the revisionists and others on his side. The revisionist no. 1 has received grievous injury on his parietal left skull. The defence was entitled to ask question to P.W.1 Balwant Singh regarding injury received by Raj Kumar and Gore Lal on the side of accused. It has also been submitted that the trial court has rejected the application filed under Section 311 Cr.P.C. without application of mind and ignoring the provision of law. 5. The defence was entitled to ask question to P.W.1 Balwant Singh regarding injury received by Raj Kumar and Gore Lal on the side of accused. It has also been submitted that the trial court has rejected the application filed under Section 311 Cr.P.C. without application of mind and ignoring the provision of law. 5. Per contra, learned counsel for opposite party No.2/ informant has submitted that the trial court has passed the impugned order considering the facts of the case and law applicable for summoning witnesses u/s 311 Cr.P.C. It has also been submitted that there is no illegality in the impugned order. It has also been submitted that the revisionists/ defence has not mentioned in the application under Section 311 Cr.P.C. any specific question to be asked to P.W.1 Balwant Singh in cross-examination. It has also been submitted that P.W.1 Balwant Singh is not named in the N.C.R. There is no occasion to summon P.W.1 for cross-examination. It has also been submitted that in the case relating to application under Section 311 Cr.P.C., the statement of P.W.1 Balwant Singh was recorded on 17.03.2011 and his cross-examination was concluded on 17.11.2021. The revisionists were granted sufficient time to cross-examine P.W.1 Balwant Singh. The revisionists have not filed copy of N.C.R. lodged by him against opposite party nos. 2 and persons of his side. 6. Learned counsel for the revisionists and learned counsel for the opposite party no. 2 have relied upon the following rulings in support of their arguments :- (i) Application U/S 482 No. 25531 of 2022, Rajendra Kumar Vs. State of U.P. (ii) Mohanlal Shyam Ji Soni Vs. Union of India and Another, decided in 1991 (iii) Rajaram Prasad Yadav Vs. State of Bihar and others, AIR 2013 SC 3081 (iv) State (NCT of Delhi) Vs. Shiv Kumar Yadav and Another, (2016) 2 SCC 402 . 7. The learned counsels for both parties have been heard. Perused the record of criminal revision including the impugned order. 8. The revisionist, Shiv Mohan has filed application u/s 311 Cr.P.C. on 17.07.2022 for summoning P.W.1 Balwant Singh for cross-examination regarding the injuries received by his sons, Raj Kumar and Gore Lal in the cross case and on some other points. 9. In the application, it iss stated that his previous counsel did not cross-examine P.W.1 on this point. 8. The revisionist, Shiv Mohan has filed application u/s 311 Cr.P.C. on 17.07.2022 for summoning P.W.1 Balwant Singh for cross-examination regarding the injuries received by his sons, Raj Kumar and Gore Lal in the cross case and on some other points. 9. In the application, it iss stated that his previous counsel did not cross-examine P.W.1 on this point. Therefore, P.W.1 Balwant Singh may be summoned so that applicant’s counsel may cross-examine him on this point. The application was rejected by the trial court by the impugned order dated 11.05.2023 on the ground that the examination-in-chief of P.W.1 Balwant Singh was recorded on 17.03.2021. On that date, his cross-examination was deferred due to the adjournment application of defence. 10. P.W.1 Balwant Singh was cross-examined about 8 months after his examination-in-chief on 17.11.2021. In the impugned order, the trial court has also mentioned that the applicant/defence had not submitted any document relating to N.C.R. of the alleged cross case. 11. The statutory provisions relating to summoning of a person as a witness during trial is provided u/s 311 Cr.P.C. which is as follows : Section 311 of Code of Criminal Procedure : 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. 12. The Hon’ble Apex Court in Rajaram Prasad Yadav (supra), has narrated several guidelines which the court should take into consideration while deciding the application u/s 311 Cr.P.C. After considering the earlier precedent, the Hon’ble Apex Court has explained and enumerated following principles regarding application u/s 311 Cr.P.C. which is as follows : "14. A conspicuous reading of Section 311 Cr P C would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A conspicuous reading of Section 311 Cr P C would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a prefix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 CrPC and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription contained in Section 311 Cr.P.C. It is, therefore, imperative that the 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 provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person already examined, the court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. xxx 23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr P C read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts: a) Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case? b) The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated. c) If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person. d) The exercise of power under Section 311 Cr P C should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. f) The wide discretionary power should be exercised judiciously and not arbitrarily. g) The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. h) The object of Section 311 Cr P C simultaneously imposes a duty on the court to determine the truth and to render a just decision. h) The object of Section 311 Cr P C simultaneously imposes a duty on the court to determine the truth and to render a just decision. i) The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. j) Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. k) The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party. m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right." 13. The primary factor for deciding the application u/s 311 Cr.P.C. is essentiality of the evidence to arrive at a just decision of the case. The primary factor for deciding the application u/s 311 Cr.P.C. is essentiality of the evidence to arrive at a just decision of the case. The resultant filling up the loopholes on account of allowing the application u/s 311 Cr.P.C. is merely subsidiary factor and the court’s determination of the application should only be based on test of essentiality of evidence. 14. In Swapan Kumar Chatterjee Vs. Central Bureau of Investigation, 2019 (14) SCC 328 , the Hon’ble Apex Court has observed as hereunder : “It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.” 15. In State (NCT of Delhi) (supra), the Hon’ble Apex Court has discussed the question of re-summoning witness on the ground of change of defence counsel as follows :- “While advancement of justice remains the prime object of law, it cannot be understood to mean that recall can be allowed for the asking or reasons related to mere convenience. It has normally to be presumed that a counsel conducting a case is competent particularly when a counsel is appointed by choice of a litigant. Taken to its logical end, the principle that a retrial must follow on every change of a counsel, can have serious consequences on conduct of trials and the criminal justice system. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.” 16. The witnesses cannot be expected to face the hardship of appearing in court repeatedly, particularly in sensitive cases such as the present one. It can result in undue hardship for the victims, especially so, of heinous crimes, if they are required to repeatedly appear in court to face cross-examination.” 16. Now, it is desirable to examine the facts of the case in the light of law laid down by the Apex Court for exercise of power u/s 311 Cr.P.C. From the perusal of the first information report relating to the present case and the N.C.R. lodged by the revisionist against the persons on the side of informant, Balwant Singh, it tranpsires that both F.I.R. and N.C.R. relates to the same incident which took place on 12.05.2020 at 7 p.m. 17. The revisionist has filed injury report of his sons, Raj Kumar and Gore Lal. Although, the revisionist, Shiv Mohan had lodged the N.C.R. No. 46 of 2020 under Section 323, 504 I.P.C. on the next day of the incident on 13.05.2020 in Police Station- Malwan, District- Fatehpur. The revisionist has filed injury reports of his sons, Raj Kumar and Gore Lal, allegedly injured in the same incident. Raj Kumar and Gore Lal were medically examined on 13.05.2020 at 4:05 p.m. and 4:16 p.m. at District Hospital, Fatehpur. The skull of injured Gore Lal was x-rayed in Department of Radiology and Ultrasound, Combined District Hospital, Kaushambi. According to his x-ray report, ‘fracture of left sided parietal bone of skull seen’. The injured Gore Lal has also submitted application u/s 155 (2) Cr.P.C. in the court of Chief Judicial Magistrate, Fatehpur for disposal. 18. In the above facts and circumstances of the case, it prima facie, appears that in the occurrence relating to the present sessions trial, sons of revisionist, Raj Kumar and Gore Lal, have also received injuries for which he had submitted written report which was registered as N.C.R. No. 46 of 2020 in Police Station- Malwan, District- Fatehpur. 19. From the perusal of evidence of P.W.1 Balwant Singh, it is conspicuous that on 17.03.2021, his examination-in-chief was recorded and on 17.11.2021, his cross-examination was done by the defense. 20. 19. From the perusal of evidence of P.W.1 Balwant Singh, it is conspicuous that on 17.03.2021, his examination-in-chief was recorded and on 17.11.2021, his cross-examination was done by the defense. 20. Considering the above mentioned facts and circumstances of the case in the light of the law laid down by the Hon’ble Apex Court, it appears that it is essential in the interest of justice that the revisionist/defence is granted an opportunity on heavy costs to cross-examine P.W.1 Balwant Singh on the point of N.C.R. registered by the revisionist and the injuries received by Raj Kumar and Gore Lal. 21. P.W.1 Balwant Singh has not been examined on the point of N.C.R. registered by Shiv Mohan regarding the incident. He has also not been cross-examined about the injuries allegedly received by Raj Kumar and Gore Lal in the incident. 22. From the above discussion of the facts and circumstances of the case, I am of the considered view that it is essential in the interest of justice that the revisionist/defence is granted one opportunity to cross-examine at costs of Rs.10,000/- to be paid to the witness, Balwant Singh 23. On production of this order, the trial court shall get Rs.10,000/-deposited by the revisionists and then fix a date for cross-examination of P.W.1 Balwant Singh. On that date, the defense shall cross-examine P.W.1 Balwant Singh on the matter relating to N.C.R. registered by Shiv Mohan and the injuries received his sons, Raj Kumar and Gore Lal. The defense shall conclude the cross-examination on the same day and they shall not be granted adjournment for further cross-examination of P.W.1 Balwant Singh. 24. From the above discussion, I am of the opinion that the trial court should have allowed the application u/s 311 Cr.P.C. subject to payment of heavy cost. The trial court has committed illegality in rejecting the aforesaid application. 25. The criminal revision is accordingly allowed subject to aforesaid conditions regarding payment of cost and completion of cross-examination of P.W.1 Balwant Singh on the same date. 26. The copy of the judgement be forthwith sent to the trial court for compliance.