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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2013
(@ SLP (CRL.) No.2400 of 2011)
Rajaram Prasad Yadav ….Appellant
VERSUS
State of Bihar & Anr. ….Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. Leave granted.
2. This appeal is directed against the order of the High Court
of Judicature at Patna, in Criminal Miscellaneous Petition No.
12454 of 2010, dated 9.12.2010.
3. By a short order dated 18.11.09, passed in Sessions Trial
No. 425 of 2009,
the trial Court disallowed the applications of the
Respondents filed under Section 311 of the Code of Criminal
Procedure (Cr.P.C.), to re-examine PW-9, the informant.
The High
Court directed the trial Court to allow the 2nd Respondent to
examine himself as a witness on a specified date by its order
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dated 9.12.2010.
4. To narrate the brief facts, the 2nd Respondent (PW-9), herein
filed a written complaint, alleging that on 07.07.1999, at about 5
p.m. in the evening, as regards the construction of a latrine in his
land in front of his house, a dispute arose as between him and his
brother Bindeshwar Yadav and that at the instance of his brother
Bindeshwar Yadav, his son Rajaram Yadav, brought a country
made pistol and fired at the 2nd respondent (PW-9) on the left side
of the back, whereafter he was taken to the hospital for
treatment.
5. At the instance of the second respondent, based on a
complaint dated 8.7.1999, a case in Crime No. 71 of 1999 was
registered in Khizersarai Police Station for the offences
punishable under Sections 324, 307 read with Section 34 Indian
Penal Code, 1860 and also under Section 27 of the Arms Act,
1959. Investigation was held and an injury report was brought on
record, in which the doctor opined that the injury was caused by
a hard blunt substance and was single in nature. It was stated
that the second Respondent (PW-9) was able to secure another
report later on.
6. The appellant was enlarged on bail on 13.10.1999. A charge
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sheet bearing No. 127 of 1999, dated 31.10.1999 was filed
against the appellant and the other accused for the offences
under Sections 324, 307 read with 34 of IPC.
Significantly, there
was no charge framed under Section 27 of the Arms Act.
Cognizance was taken and the case was committed and after
framing of the charges, the trial commenced. After the
examination of the other witnesses, the 2nd Respondent was
examined as PW-9 on 16.3.2007.
7. In his evidence, the 2nd Respondent (PW9), categorically
stated that he never gave any statement to the police; that
nobody beat him on the date of occurrence and that he was not
hit by any bullet. He further stated in his evidence that he
accidently fell into the hole of the latrine, while looking into it and that some instrument, which was lying inside the hole, caused the injury on his body.
As far as the evidence of PW-4 and PW-5,
namely, his sons, Babloo and Munna Kumar was concerned, the
2nd Respondent (PW9) stated that they were not present at the
place of occurrence, since Babloo was staying in a hospital at
Hulasganj and Munna Kumar was at Ranchi.
The evidence of the
prosecution was closed on 4.4.2007 and thereafter, the evidence
of the defense side stated to have commenced.
8. In the meantime, it is stated that yet another altercation
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took place as between, the 2nd Respondent (PW9), his son Babloo
on the one side and the appellant and his father on the other
side, regarding the flowing of water from the latrine, constructed
by the 2nd Respondent into the field of the father of the appellant.
9. Pursuant to the said issue, it is stated that the father of the
appellant was beaten with bamboo sticks, injuring him seriously.
In connection with the said incident, Bindeshwar Yadav filed a
complaint before the police on 7.6.2007, leading to the
registration of the FIR on the same date in Khizersarai Police
Station in case No.78 of 2007.
Subsequently, the second
respondent came forward with a petition dated 24.8.2007,
under Section 311 Cr.P.C. and sought for permission for his reexamination.
For the same purpose, the Additional Public
Prosecutor also filed a petition on 5.12.2007, in the above
applications.
The trial Court passed a common order on
18.11.2009, dismissing both the applications and posted the case
for evidence of investigation officers and the doctors on
18.12.2009.
The second respondent approached the High Court
by filing the present Criminal Misc. Case No.12454/2010, in which
the impugned order was passed by the High Court on 9.12.2010.
10. We heard Mr. Mohit Kumar Shah, learned counsel for the
appellant and Mr. Gopal Singh, learned counsel for the first
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respondent and Mr. Amlan Kumar Ghosh, learned counsel for the
second respondent. We also perused the order impugned, as
well as the order of the trial Court and other material papers
placed on record.
11. Mr. Mohit Kumar Shah, learned counsel for the appellant in
his submission contended that while the trial Court passed a
reasoned order after hearing both parties extensively, the
Hon’ble High Court passed the impugned order in the absence of
the appellant.
According to the learned counsel, the second
respondent even without impleading the appellant, persuaded
the High Court to pass the impugned order, which according to
the learned counsel is on the face of it, not sustainable under
Section 311 Cr.P.C.
Learned counsel further contended that by
permitting the second respondent to get himself re-examined,
every attempt has been made to fill up the lacunae in the case of
the prosecution, which the High Court ought not to have
permitted.
According to the learned counsel, when the trial Court
had examined the pros and cons, while dealing with the prayer of
the second respondent, as well as the first respondent for reexamination of the second respondent and gave well-founded reasons for rejecting the applications, the High Court ought not to
have interfered with the same by passing a cryptic order.
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Learned counsel further contended that
the application, which
came to be allowed by the High Court was vexatious and would
only encourage the malicious designs of the second respondent
to get over his own earlier version deposed before the Court,
which fully supported the case of the appellant.
12. As against the above submissions, learned counsel for the
respondents contended that
as enormous powers are vested in
the Court under Section 311 Cr.P.C., in the matter of examination
or re-examination of a witness in order to arrive at a just
conclusion and the High Court having exercised its powers in
pursuance of the said power, the order of the High Court does not
call for interference.
13. Having heard the learned counsel for the respective parties
and having bestowed our serious consideration to the issue
involved, we find force in the submission of the counsel for the
appellant, as the same merits acceptance.
In order to appreciate
the stand of the appellant it will be worthwhile to refer to Section
311 Cr.P.C., as well as Section 138 of the Evidence Act.
The
same are extracted hereunder:
Section 311, Code of Criminal Procedure
311. Power to summon material witness, or
examine person present:
Any Court may, at any
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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.
Section 138, Evidence Act
138. Order of examinations-
witnesses shall be first
examined-in-chief, then (if the adverse party so
desires) cross-examined, then (if the party calling him
so desires) re-examined.
The examination and cross-examination must
relate to relevant facts,
but the cross-examination
need not be confined to the facts to which the witness
testified on his examination-in-chief.
Direction of re-examination-
The re-examination
shall be directed to the explanation of matters
referred to in cross-examination; and,
if new matter is,
by permission of the Court, introduced in reexamination,
the adverse party may further cross examine upon that matter.”
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 reading of
the provision shows that the expression “any” has been used as a
pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person
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as a witness”, “person in attendance though not summoned as a
witness”, and “person already examined”.
By using the said
expression “any” as a pre-fix 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.
Order of re-examination
is also prescribed calling for such a witness so desired for such
re-examination.
Therefore, a reading of Section 311 Cr.P.C. 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
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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.
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.
15. In this context, we also wish to make a reference to certain
decisions rendered by this Court on the interpretation of Section
311 Cr.P.C. where, this Court highlighted as to the basic
principles which are to be borne in mind, while dealing with an
application under Section 311 Cr.P.C. In the decision reported in
Jamatraj Kewalji Govani vs. State of Maharashtra - AIR 1968
SC 178, this Court held as under in paragraph 14:-
“14. It would appear that in our criminal jurisdiction,
statutory law confers a power in absolute terms to be
exercised at any stage of the trial to summon a
witness or examine one present in court or to recall a
witness already examined, and makes this the duty
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and obligation of the Court provided the just
decision of the case demands it. In other words,
where the court exercises the power under the second
part, the inquiry cannot be whether the accused has
brought anything suddenly or unexpectedly but
whether the court is right in thinking that the new
evidence is needed by it for a just decision of the
case. If the court has acted without the
requirements of a just decision, the action is
open to criticism but if the court's action is
supportable as being in aid of a just decision
the action cannot be regarded as exceeding the
jurisdiction.”
(Emphasis added)
16. In the decision reported in Mohanlal Shamji Soni vs.
Union of India and another - 1991 Suppl.(1) SCC 271, this
Court again highlighted the importance of the power to be
exercised under Section 311 Cr.P.C. as under in paragraph 10:-
“10….In order to enable the court to find out the truth
and render a just decision, the salutary provisions of
Section 540 of the Code (Section 311 of the new
Code) are enacted whereunder any court by
exercising its discretionary authority at any stage of
enquiry, trial or other proceeding can summon any
person as a witness or examine any person in
attendance though not summoned as a witness or
recall or re-examine any person in attendance though
not summoned as a witness or recall and re-examine
any person already examined who are expected to be
able to throw light upon the matter in dispute;
because if judgments happen to be rendered on
inchoate, inconclusive and speculative presentation of
facts, the ends of justice would be defeated.”
17. In the decision in Raj Deo Sharma (II) vs. State of Bihar
- 1999 (7) SCC 604, the proposition has been reiterated as under
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in paragraph 9:-
“9. We may observe that the power of the court as
envisaged in Section 311 of the Code of Criminal
Procedure has not been curtailed by this Court.
Neither in the decision of the five-Judge Bench in A.R.
Antulay case nor in Kartar Singh case such power has
been restricted for achieving speedy trial. In other
words, even if the prosecution evidence is closed in
compliance with the directions contained in the main
judgment it is still open to the prosecution to invoke
the powers of the court under Section 311 of the
Code. We make it clear that if evidence of any
witness appears to the court to be essential to
the just decision of the case it is the duty of the
court to summon and examine or recall and reexamine any such person.”
(Emphasis added)
18. In U.T. of Dadra and Nagar Haveli and Anr. vs.
Fatehsinh Mohansinh Chauhan - 2006 (7) SCC 529, the
decision has been further elucidated as under in paragraph 15:-
“15. A conspectus of authorities referred to above
would show that the principle is well settled that
the exercise of power under Section 311 CrPC
should be resorted to only with the object of
finding out the truth or obtaining proper proof
of such facts which lead to a just and correct
decision of the case, this being the primary duty of
a criminal court. Calling a witness or re-examining a
witness already examined for the purpose of finding
out the truth in order to enable the court to
arrive at a just decision of the case cannot be
dubbed as “filling in a lacuna in the 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.”
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19. In Iddar & Ors. vs. Aabida & Anr. - AIR 2007 SC 3029, the
object underlying under Section 311 Cr.P.C., has been stated as
under in paragraph 11:-
“11. The object underlying Section 311 of the Code is
that there may not be failure of justice on account of
mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the
statements of the witnesses examined from either
side. The determinative factor is whether it is
essential to the just decision of the case. The
section is not limited only for the benefit of the
accused, and it will not be an improper exercise of the
powers of the court to summon a witness under the
section merely because the evidence supports the
case for the prosecution and not that of the accused.
The section is a general section which applies to all
proceedings, enquiries and trials under the Code and
empowers Magistrate to issue summons to any
witness at any stage of such proceedings, trial or
enquiry. In Section 311 the significant expression that
occurs is ‘at any stage of inquiry or trial or other
proceeding under this Code’. It is, however, to be
borne in mind that whereas the section confers
a very wide power on the court on summoning
witnesses, the discretion conferred is to be
exercised judiciously, as the wider the power
the greater is the necessity for application of
judicial mind.”
(Emphasis added)
20. In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242,
the scope of Section 311 Cr.P.C. has been highlighted by making
reference to an earlier decision of this Court and also with
particular reference to the case, which was dealt with in that
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decision in paragraphs 13 and 16, which are as under:-
“13. Grant of fairest opportunity to the accused to
prove his innocence was the object of every fair trial,
observed this Court in Hoffman Andreas v. Inspector
of Customs, Amritsar (2000) 10 SCC 430. The
following passage is in this regard apposite:
“In such circumstances, if the new counsel thought to
have the material witnesses further examined, the
Court could adopt latitude and a liberal view in
the interest of justice, particularly when the
court has unbridled powers in the matter as
enshrined in Section 311 of the Code. After all
the trial is basically for the prisoners and courts
should afford the opportunity to them in the
fairest manner possible.”
16. We are conscious of the fact that recall of the
witnesses is being directed nearly four years after
they were examined-in-chief about an incident that is
nearly seven years old. Delay takes a heavy toll on the
human memory apart from breeding cynicism about
the efficacy of the judicial system to decide cases
within a reasonably foreseeable time period. To that
extent the apprehension expressed by Mr. Rawal, that
the prosecution may suffer prejudice on account of a
belated recall, may not be wholly without any basis.
Having said that, we are of the opinion that on a parity
of reasoning and looking to the consequences of
denial of opportunity to cross-examine the witnesses,
we would prefer to err in favour of the appellant
getting an opportunity rather than protecting the
prosecution against a possible prejudice at his cost.
Fairness of the trial is a virtue that is sacrosanct
in our judicial system and no price is too heavy
to protect that virtue. A possible prejudice to
prosecution is not even a price, leave alone one
that would justify denial of a fair opportunity to
the accused to defend himself.”
(Emphasis added)
21. In a recent decision of this Court in Sheikh Jumman vs.
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State of Maharashtra - (2012) 9 SCALE 80, the above referred
to decisions were followed.
22. Again in an unreported decision rendered by this Court
dated 08.05.2013 in Natasha Singh vs. CBI (State) – Criminal
Appeal No.709 of 2013, where one of us was a party, various
other decisions of this Court were referred to and the position has
been stated as under in paragraphs 14 and 15:
“14. The scope and object of the provision is to
enable the Court to determine the truth and to render
a just decision after discovering all relevant facts and
obtaining proper proof of such facts, to arrive at a just
decision of the case. Power must be exercised
judiciously and not capriciously or arbitrarily, as any
improper or capricious exercise of such power may
lead to undesirable results. An application under
Section 311 Cr.P.C. must not be allowed only to fill up
a lacuna in the case of the 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.
Further the additional evidence must not be received
as a disguise for retrial, or to change the nature of the
case against either of the parties. Such a power must
be exercised, provided that the evidence that is likely
to be tendered by a witness, is germane to the issue
involved. An opportunity of rebuttal, however, must
be given to the other party.
The power conferred 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 great
caution and circumspection.
The very use of words such as ‘any Court’, ‘at
any stage’, or ‘or any enquiry’, trial or other
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proceedings’, ‘any person’ and ‘any such person’
clearly spells out that the provisions of this section
have been expressed in the widest possible terms,
and do not limit the discretion of the Court in any way.
There is thus no escape if the fresh evidence to be
obtained is essential to the just decision of the case.
The determinative factor should, therefore, be
whether the summoning/recalling of the said witness
is in fact, essential to the just decision of the case.
15. Fair trial is the main object of criminal procedure,
and it is the duty of the court to ensure that such
fairness is not hampered or threatened in any manner.
Fair trial entails the interests of the accused, the
victim and of the society, and therefore, fair trial
includes the grant of fair and proper opportunities to
the person concerned, and the same must be ensured
as this is a constitutional, as well as a human right.
Thus, under no circumstances can a person’s right to
fair trial be jeopardized. Adducing evidence in support
of the defence is a valuable right. Denial of such right
would amount to the denial of a fair trial. Thus, it is
essential that the rules of procedure that have been
designed to ensure justice are scrupulously followed,
and the court must be zealous in ensuring that there
is no breach of the same. (Vide Talab Haji Hussain v.
Madhukar Purshottam Mondkar & Anr., AIR 1958 SC
376; Zahira Habibulla H. Sheikh & Anr. v. State of
Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah
Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC
1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam
(Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P.
& Anr., (2011) 8 SCC 136; and Sudevanand v. State
through C.B.I. (2012) 3 SCC 387.)”
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:
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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 Cr.P.C. 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.
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
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of justice without such evidence being
considered.
j) Exigency of the situation, fair play and good
sense should be the safe guard, 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
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well as a human right.
24. Keeping the above principles in mind, when we examine the
case on hand, at the very outset, it will have to be stated that the
High Court, while passing the impugned order has completely
ignored the principal objectives with which the provision under
Section 311 Cr.P.C. has been brought into the statute book. As
rightly argued by the learned counsel for the appellant, at the
foremost when the trial was very much in the grip of the trial
Court, which had every opportunity to hear the appellant, the
State, as well as the second respondent, had not even bothered
to verify whether the appellant, who was facing criminal trial was
impleaded as a party to the proceedings in the High Court. A
perusal of the order discloses that the High Court appears to
have passed orders on the very first hearing date, unmindful of
the consequences involved. The order does not reflect any of the
issues dealt with by the Learned Sessions Judge, while rejecting
the application of the respondents in seeking to re-examine PW-
9, the second respondent herein. Though orders could have been
passed in this appeal by remitting the matter back to the High
Court, having regard to the time factor and since the entire
material for passing final orders, are available on record and
since all parties were before us, the correctness of the order of
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the Sessions Judge dated 18.11.2009, can be examined and final
orders can be passed one way or the other in the present criminal
appeal itself.
25. With that view, when we examine the basic facts, we find
them as noted by the learned trial Judge being indisputably
contrary to the complaint preferred by the second respondent on
8.7.1999, in the police station in case No. 71/1999, wherein
offences under Section 324/307/34 IPC were reported alongwith
Section 27 of the Arms Act. Based on the report of the doctor, the
chargesheet came to be filed bearing No.127/99, dated
31.10.1999, under Sections 324/307/34 IPC and no charge under
Section 27 of the Arms Ac was laid. The said case was put to trial
and parties were participating. In the course of the trial, the turn
of examination of PW-9, the second respondent came on
16.3.2007, nearly after eight years from the date of occurrence.
Second respondent made a categorical statement in his evidence
that he never made any statement to the police nor was he
beaten on the date of occurrence, nor was he hit by any bullet
shot. Further he made a clear statement that the injury
sustained by him was due to the fall into the hole dug for
constructing a latrine, where some instruments caused the injury
sustained by him. He also made a categorical statement that his
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sons PWs-4 and 5, Babloo and Munna Kumar, were not present at
the place of occurrence since one was staying in a hostel in
Hulasganj and the other was at Ranchi on the date and time of
occurrence, namely, on 07.07.1999, at about 5 p.m. While the
said version of the second respondent was stated to have been
recorded by the Court below on 16.3.2007, and the evidence of
the prosecution was stated to have been closed on 4.4.2007, the
defence evidence seem to have also commenced.
26. In that scenario, the second respondent filed the present
application under Section 311 Cr.P.C. on 24.8.2007, i.e., nearly
after five months after his examination by the trial Court. While
filing the said application, the second respondent claimed that his
evidence tendered on 16.3.2007, was not out of his own free will
and volition, but due to threat and coercion at the instance of the
accused persons, including the appellant. It was contended on
behalf of the second respondent that the accused persons posed
a threat by going to the extent of eliminating him and that such
threat was meted out to him on 15.3.2007, when he was
kidnapped from his wheat field by the accused, along with two
unknown persons.
27. The trial Court having examined all the above factors in its
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order dated 18.11.2009, has held as under:
“….Either at the time of his evidence in Court or
subsequent to his evidence he never made any
complaint to the court or any other officer viz. the
C.J.M. or any police officer that accused persons had
yielded any pressure upon him to turn hostile to the
prosecution and to give a go by to the prosecution
case. He has also argued that he did not also file any
affidavit or case in this regard. Rather when on the
basis of the information dated 30.5.2007 given by the
accused Bindeshwar Yadav Khizersarai Police Station
case No.78/2007 dated 7.6.2008 was registered by
the police the informant Suresh Prasad has filed this
petition and has also got the similar petition filed
through the Additional Public Prosecutor which has got
no legs to stand and the same is fit to be rejected. He
also filed a photocopy of the FIR to Khizersarai Police
Station case No.78/2007 in support of his argument.”
28. After noting the above submissions made on behalf of the
accused, the trial Court held as under:
“….After the evidence of the informant, Suresh Prasad
(PW-9) on 16.03.2007 the Court of Addl. Sessions
Judge, F.T.C.-5 closed the evidence of prosecution on
04.04.2007 after giving opportunity to the learned
Addl. P.P. to produce the remaining witness on
26.03.2007 and 04.04.2007 which he could not do on
the ground that the time limited by the Hon’ble Court
has expired. The Lordships of Supreme Court have
held in Dohiyabhai Vs. State, AIR 1964 SC 1563 that
“Right to re-examine a witness arises only after the
conclusion of cross examination and S.C. 138 says it
shall be directed to the explanation of any part of his
evidence given during cross examination which is
capable of being construed unfavourably too his own
side. The object is to give an opportunity to reconcile
the discrepancies if any between the statements in
examination in chief and cross examination or to
explain any statement inadvertently made in cross
examination or to remove any ambiguity in the
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deposition or suspicion cast on the evidence by cross
examination. Where there is no ambiguity or where
there is nothing to explain, question put in reexamination with the sole object of giving a change to
the witness to unto the effect of the previous
statement should not be asked during re-examination
(S.142). Section 154 is wide in its scope and court can
permit a person calling a witness to but question in
the nature of cross examination at the stage of reexamination provided it take care to give opportunity
to the adverse party to cross examine the witness in
the such case”.
It is clear from the afore quoted
principles decided by the Hon’ble Apex Court and from
the evidence of PW-9 as well as from the instant two
aforesaid petitions filed on behalf of the PW-9 and the
Additional P.P. that the cross examination of PW-9
does not contain any evidence against his evidence in
chief which could be explained or made clear by reexamination of PW-9 through his re-examination vide
Section 138 Evidence Act or Section 311 of the
Criminal Procedure Code.
It is also clear that PW-9 had
filed petition after filing of the case against him by the
accused. As such the two instant petitions are not
maintainable.
However, whether the hostility of PW-9
would have been tested on the touch stone of Section
145 Evidence Act by examining the I.O. as some other
prosecution witness have supported the prosecution
case.
The evidence of the I.O. of the case is taken
would have sufficed the end of justice.”
29. We find that the factors noted by the trial Court and the
conclusion arrived at by it were all appropriate and just, while
deciding the application filed under Section 311 Cr.P.C.
We do
not find any bonafides in the application of the second
respondent, while seeking the permission of the Court under
Section 311 Cr.P.C. for his re-examination by merely alleging that on the earlier occasion he turned hostile under coercion and
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threat meted out to him at the instance of the appellant and
other accused.
It was quite apparent that the complaint, which
emanated at the instance of the appellant based on the
subsequent incident, which took place on 30.5.2007, which
resulted in the registration of the FIR in Khizersarai Police Station in case No.78/2007, seem to have weighed with the second respondent to come forward with the present application under Section 311 Cr.P.C., by way of an afterthought.
If really there
was a threat to his life at the instance of the appellant and the
other accused, as rightly noted by the Court below, it was not
known as to why there was no immediate reference to such
coercion and undue influence meted out against him at the
instance of the appellant, when he had every opportunity to
mention the same to the learned trial Judge or to the police
officers or to any prosecution agency.
Such an indifferent stance
and silence maintained by the second respondent herein and the
categorical statement made before the Court below in his
evidence as appreciated by the Court below was in the proper
perspective, while rejecting the application of the respondents
filed under Section 311 Cr.P.C.
In our considered opinion, the
trial Court, had the opportunity to observe the demeanour of the
second respondent, while tendering evidence which persuaded
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the trial Court to reach the said conclusion and that deserves
more credence while examining the correctness of the said order
passed by the trial Court.
30. In the light of the above conclusion, applying the various
principles set out above, we are convinced that the order of the
trial Court impugned before the High Court did not call for any
interference in any event behind the back of the appellant herein.
The appeal, therefore, succeeds. The order impugned dated
9.12.2010, passed in Crl. M.P. 12454/2010 of the High Court is set
aside. The order of the trial Court stands restored. The trial
Court shall proceed with the trial. The stay granted by this Court
in the order dated 7.3.2011, stands vacated. The trial Court shall
proceed with the trial from the stage it was left and conclude the
same expeditiously, preferably within three months from the date
of receipt of the copy of this order.
……...............................................J.
[T.S. Thakur]
…………….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
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July 04, 2013
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2013
(@ SLP (CRL.) No.2400 of 2011)
Rajaram Prasad Yadav ….Appellant
VERSUS
State of Bihar & Anr. ….Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. Leave granted.
2. This appeal is directed against the order of the High Court
of Judicature at Patna, in Criminal Miscellaneous Petition No.
12454 of 2010, dated 9.12.2010.
3. By a short order dated 18.11.09, passed in Sessions Trial
No. 425 of 2009,
the trial Court disallowed the applications of the
Respondents filed under Section 311 of the Code of Criminal
Procedure (Cr.P.C.), to re-examine PW-9, the informant.
The High
Court directed the trial Court to allow the 2nd Respondent to
examine himself as a witness on a specified date by its order
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dated 9.12.2010.
4. To narrate the brief facts, the 2nd Respondent (PW-9), herein
filed a written complaint, alleging that on 07.07.1999, at about 5
p.m. in the evening, as regards the construction of a latrine in his
land in front of his house, a dispute arose as between him and his
brother Bindeshwar Yadav and that at the instance of his brother
Bindeshwar Yadav, his son Rajaram Yadav, brought a country
made pistol and fired at the 2nd respondent (PW-9) on the left side
of the back, whereafter he was taken to the hospital for
treatment.
5. At the instance of the second respondent, based on a
complaint dated 8.7.1999, a case in Crime No. 71 of 1999 was
registered in Khizersarai Police Station for the offences
punishable under Sections 324, 307 read with Section 34 Indian
Penal Code, 1860 and also under Section 27 of the Arms Act,
1959. Investigation was held and an injury report was brought on
record, in which the doctor opined that the injury was caused by
a hard blunt substance and was single in nature. It was stated
that the second Respondent (PW-9) was able to secure another
report later on.
6. The appellant was enlarged on bail on 13.10.1999. A charge
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sheet bearing No. 127 of 1999, dated 31.10.1999 was filed
against the appellant and the other accused for the offences
under Sections 324, 307 read with 34 of IPC.
Significantly, there
was no charge framed under Section 27 of the Arms Act.
Cognizance was taken and the case was committed and after
framing of the charges, the trial commenced. After the
examination of the other witnesses, the 2nd Respondent was
examined as PW-9 on 16.3.2007.
7. In his evidence, the 2nd Respondent (PW9), categorically
stated that he never gave any statement to the police; that
nobody beat him on the date of occurrence and that he was not
hit by any bullet. He further stated in his evidence that he
accidently fell into the hole of the latrine, while looking into it and that some instrument, which was lying inside the hole, caused the injury on his body.
As far as the evidence of PW-4 and PW-5,
namely, his sons, Babloo and Munna Kumar was concerned, the
2nd Respondent (PW9) stated that they were not present at the
place of occurrence, since Babloo was staying in a hospital at
Hulasganj and Munna Kumar was at Ranchi.
The evidence of the
prosecution was closed on 4.4.2007 and thereafter, the evidence
of the defense side stated to have commenced.
8. In the meantime, it is stated that yet another altercation
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took place as between, the 2nd Respondent (PW9), his son Babloo
on the one side and the appellant and his father on the other
side, regarding the flowing of water from the latrine, constructed
by the 2nd Respondent into the field of the father of the appellant.
9. Pursuant to the said issue, it is stated that the father of the
appellant was beaten with bamboo sticks, injuring him seriously.
In connection with the said incident, Bindeshwar Yadav filed a
complaint before the police on 7.6.2007, leading to the
registration of the FIR on the same date in Khizersarai Police
Station in case No.78 of 2007.
Subsequently, the second
respondent came forward with a petition dated 24.8.2007,
under Section 311 Cr.P.C. and sought for permission for his reexamination.
For the same purpose, the Additional Public
Prosecutor also filed a petition on 5.12.2007, in the above
applications.
The trial Court passed a common order on
18.11.2009, dismissing both the applications and posted the case
for evidence of investigation officers and the doctors on
18.12.2009.
The second respondent approached the High Court
by filing the present Criminal Misc. Case No.12454/2010, in which
the impugned order was passed by the High Court on 9.12.2010.
10. We heard Mr. Mohit Kumar Shah, learned counsel for the
appellant and Mr. Gopal Singh, learned counsel for the first
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respondent and Mr. Amlan Kumar Ghosh, learned counsel for the
second respondent. We also perused the order impugned, as
well as the order of the trial Court and other material papers
placed on record.
11. Mr. Mohit Kumar Shah, learned counsel for the appellant in
his submission contended that while the trial Court passed a
reasoned order after hearing both parties extensively, the
Hon’ble High Court passed the impugned order in the absence of
the appellant.
According to the learned counsel, the second
respondent even without impleading the appellant, persuaded
the High Court to pass the impugned order, which according to
the learned counsel is on the face of it, not sustainable under
Section 311 Cr.P.C.
Learned counsel further contended that by
permitting the second respondent to get himself re-examined,
every attempt has been made to fill up the lacunae in the case of
the prosecution, which the High Court ought not to have
permitted.
According to the learned counsel, when the trial Court
had examined the pros and cons, while dealing with the prayer of
the second respondent, as well as the first respondent for reexamination of the second respondent and gave well-founded reasons for rejecting the applications, the High Court ought not to
have interfered with the same by passing a cryptic order.
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Learned counsel further contended that
the application, which
came to be allowed by the High Court was vexatious and would
only encourage the malicious designs of the second respondent
to get over his own earlier version deposed before the Court,
which fully supported the case of the appellant.
12. As against the above submissions, learned counsel for the
respondents contended that
as enormous powers are vested in
the Court under Section 311 Cr.P.C., in the matter of examination
or re-examination of a witness in order to arrive at a just
conclusion and the High Court having exercised its powers in
pursuance of the said power, the order of the High Court does not
call for interference.
13. Having heard the learned counsel for the respective parties
and having bestowed our serious consideration to the issue
involved, we find force in the submission of the counsel for the
appellant, as the same merits acceptance.
In order to appreciate
the stand of the appellant it will be worthwhile to refer to Section
311 Cr.P.C., as well as Section 138 of the Evidence Act.
The
same are extracted hereunder:
Section 311, Code of Criminal Procedure
311. Power to summon material witness, or
examine person present:
Any Court may, at any
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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.
Section 138, Evidence Act
138. Order of examinations-
witnesses shall be first
examined-in-chief, then (if the adverse party so
desires) cross-examined, then (if the party calling him
so desires) re-examined.
The examination and cross-examination must
relate to relevant facts,
but the cross-examination
need not be confined to the facts to which the witness
testified on his examination-in-chief.
Direction of re-examination-
The re-examination
shall be directed to the explanation of matters
referred to in cross-examination; and,
if new matter is,
by permission of the Court, introduced in reexamination,
the adverse party may further cross examine upon that matter.”
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 reading of
the provision shows that the expression “any” has been used as a
pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person
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as a witness”, “person in attendance though not summoned as a
witness”, and “person already examined”.
By using the said
expression “any” as a pre-fix 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.
Order of re-examination
is also prescribed calling for such a witness so desired for such
re-examination.
Therefore, a reading of Section 311 Cr.P.C. 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
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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.
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.
15. In this context, we also wish to make a reference to certain
decisions rendered by this Court on the interpretation of Section
311 Cr.P.C. where, this Court highlighted as to the basic
principles which are to be borne in mind, while dealing with an
application under Section 311 Cr.P.C. In the decision reported in
Jamatraj Kewalji Govani vs. State of Maharashtra - AIR 1968
SC 178, this Court held as under in paragraph 14:-
“14. It would appear that in our criminal jurisdiction,
statutory law confers a power in absolute terms to be
exercised at any stage of the trial to summon a
witness or examine one present in court or to recall a
witness already examined, and makes this the duty
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and obligation of the Court provided the just
decision of the case demands it. In other words,
where the court exercises the power under the second
part, the inquiry cannot be whether the accused has
brought anything suddenly or unexpectedly but
whether the court is right in thinking that the new
evidence is needed by it for a just decision of the
case. If the court has acted without the
requirements of a just decision, the action is
open to criticism but if the court's action is
supportable as being in aid of a just decision
the action cannot be regarded as exceeding the
jurisdiction.”
(Emphasis added)
16. In the decision reported in Mohanlal Shamji Soni vs.
Union of India and another - 1991 Suppl.(1) SCC 271, this
Court again highlighted the importance of the power to be
exercised under Section 311 Cr.P.C. as under in paragraph 10:-
“10….In order to enable the court to find out the truth
and render a just decision, the salutary provisions of
Section 540 of the Code (Section 311 of the new
Code) are enacted whereunder any court by
exercising its discretionary authority at any stage of
enquiry, trial or other proceeding can summon any
person as a witness or examine any person in
attendance though not summoned as a witness or
recall or re-examine any person in attendance though
not summoned as a witness or recall and re-examine
any person already examined who are expected to be
able to throw light upon the matter in dispute;
because if judgments happen to be rendered on
inchoate, inconclusive and speculative presentation of
facts, the ends of justice would be defeated.”
17. In the decision in Raj Deo Sharma (II) vs. State of Bihar
- 1999 (7) SCC 604, the proposition has been reiterated as under
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in paragraph 9:-
“9. We may observe that the power of the court as
envisaged in Section 311 of the Code of Criminal
Procedure has not been curtailed by this Court.
Neither in the decision of the five-Judge Bench in A.R.
Antulay case nor in Kartar Singh case such power has
been restricted for achieving speedy trial. In other
words, even if the prosecution evidence is closed in
compliance with the directions contained in the main
judgment it is still open to the prosecution to invoke
the powers of the court under Section 311 of the
Code. We make it clear that if evidence of any
witness appears to the court to be essential to
the just decision of the case it is the duty of the
court to summon and examine or recall and reexamine any such person.”
(Emphasis added)
18. In U.T. of Dadra and Nagar Haveli and Anr. vs.
Fatehsinh Mohansinh Chauhan - 2006 (7) SCC 529, the
decision has been further elucidated as under in paragraph 15:-
“15. A conspectus of authorities referred to above
would show that the principle is well settled that
the exercise of power under Section 311 CrPC
should be resorted to only with the object of
finding out the truth or obtaining proper proof
of such facts which lead to a just and correct
decision of the case, this being the primary duty of
a criminal court. Calling a witness or re-examining a
witness already examined for the purpose of finding
out the truth in order to enable the court to
arrive at a just decision of the case cannot be
dubbed as “filling in a lacuna in the 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.”
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19. In Iddar & Ors. vs. Aabida & Anr. - AIR 2007 SC 3029, the
object underlying under Section 311 Cr.P.C., has been stated as
under in paragraph 11:-
“11. The object underlying Section 311 of the Code is
that there may not be failure of justice on account of
mistake of either party in bringing the valuable
evidence on record or leaving ambiguity in the
statements of the witnesses examined from either
side. The determinative factor is whether it is
essential to the just decision of the case. The
section is not limited only for the benefit of the
accused, and it will not be an improper exercise of the
powers of the court to summon a witness under the
section merely because the evidence supports the
case for the prosecution and not that of the accused.
The section is a general section which applies to all
proceedings, enquiries and trials under the Code and
empowers Magistrate to issue summons to any
witness at any stage of such proceedings, trial or
enquiry. In Section 311 the significant expression that
occurs is ‘at any stage of inquiry or trial or other
proceeding under this Code’. It is, however, to be
borne in mind that whereas the section confers
a very wide power on the court on summoning
witnesses, the discretion conferred is to be
exercised judiciously, as the wider the power
the greater is the necessity for application of
judicial mind.”
(Emphasis added)
20. In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242,
the scope of Section 311 Cr.P.C. has been highlighted by making
reference to an earlier decision of this Court and also with
particular reference to the case, which was dealt with in that
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decision in paragraphs 13 and 16, which are as under:-
“13. Grant of fairest opportunity to the accused to
prove his innocence was the object of every fair trial,
observed this Court in Hoffman Andreas v. Inspector
of Customs, Amritsar (2000) 10 SCC 430. The
following passage is in this regard apposite:
“In such circumstances, if the new counsel thought to
have the material witnesses further examined, the
Court could adopt latitude and a liberal view in
the interest of justice, particularly when the
court has unbridled powers in the matter as
enshrined in Section 311 of the Code. After all
the trial is basically for the prisoners and courts
should afford the opportunity to them in the
fairest manner possible.”
16. We are conscious of the fact that recall of the
witnesses is being directed nearly four years after
they were examined-in-chief about an incident that is
nearly seven years old. Delay takes a heavy toll on the
human memory apart from breeding cynicism about
the efficacy of the judicial system to decide cases
within a reasonably foreseeable time period. To that
extent the apprehension expressed by Mr. Rawal, that
the prosecution may suffer prejudice on account of a
belated recall, may not be wholly without any basis.
Having said that, we are of the opinion that on a parity
of reasoning and looking to the consequences of
denial of opportunity to cross-examine the witnesses,
we would prefer to err in favour of the appellant
getting an opportunity rather than protecting the
prosecution against a possible prejudice at his cost.
Fairness of the trial is a virtue that is sacrosanct
in our judicial system and no price is too heavy
to protect that virtue. A possible prejudice to
prosecution is not even a price, leave alone one
that would justify denial of a fair opportunity to
the accused to defend himself.”
(Emphasis added)
21. In a recent decision of this Court in Sheikh Jumman vs.
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State of Maharashtra - (2012) 9 SCALE 80, the above referred
to decisions were followed.
22. Again in an unreported decision rendered by this Court
dated 08.05.2013 in Natasha Singh vs. CBI (State) – Criminal
Appeal No.709 of 2013, where one of us was a party, various
other decisions of this Court were referred to and the position has
been stated as under in paragraphs 14 and 15:
“14. The scope and object of the provision is to
enable the Court to determine the truth and to render
a just decision after discovering all relevant facts and
obtaining proper proof of such facts, to arrive at a just
decision of the case. Power must be exercised
judiciously and not capriciously or arbitrarily, as any
improper or capricious exercise of such power may
lead to undesirable results. An application under
Section 311 Cr.P.C. must not be allowed only to fill up
a lacuna in the case of the 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.
Further the additional evidence must not be received
as a disguise for retrial, or to change the nature of the
case against either of the parties. Such a power must
be exercised, provided that the evidence that is likely
to be tendered by a witness, is germane to the issue
involved. An opportunity of rebuttal, however, must
be given to the other party.
The power conferred 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 great
caution and circumspection.
The very use of words such as ‘any Court’, ‘at
any stage’, or ‘or any enquiry’, trial or other
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proceedings’, ‘any person’ and ‘any such person’
clearly spells out that the provisions of this section
have been expressed in the widest possible terms,
and do not limit the discretion of the Court in any way.
There is thus no escape if the fresh evidence to be
obtained is essential to the just decision of the case.
The determinative factor should, therefore, be
whether the summoning/recalling of the said witness
is in fact, essential to the just decision of the case.
15. Fair trial is the main object of criminal procedure,
and it is the duty of the court to ensure that such
fairness is not hampered or threatened in any manner.
Fair trial entails the interests of the accused, the
victim and of the society, and therefore, fair trial
includes the grant of fair and proper opportunities to
the person concerned, and the same must be ensured
as this is a constitutional, as well as a human right.
Thus, under no circumstances can a person’s right to
fair trial be jeopardized. Adducing evidence in support
of the defence is a valuable right. Denial of such right
would amount to the denial of a fair trial. Thus, it is
essential that the rules of procedure that have been
designed to ensure justice are scrupulously followed,
and the court must be zealous in ensuring that there
is no breach of the same. (Vide Talab Haji Hussain v.
Madhukar Purshottam Mondkar & Anr., AIR 1958 SC
376; Zahira Habibulla H. Sheikh & Anr. v. State of
Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah
Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC
1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam
(Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P.
& Anr., (2011) 8 SCC 136; and Sudevanand v. State
through C.B.I. (2012) 3 SCC 387.)”
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:
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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 Cr.P.C. 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.
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
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of justice without such evidence being
considered.
j) Exigency of the situation, fair play and good
sense should be the safe guard, 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
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well as a human right.
24. Keeping the above principles in mind, when we examine the
case on hand, at the very outset, it will have to be stated that the
High Court, while passing the impugned order has completely
ignored the principal objectives with which the provision under
Section 311 Cr.P.C. has been brought into the statute book. As
rightly argued by the learned counsel for the appellant, at the
foremost when the trial was very much in the grip of the trial
Court, which had every opportunity to hear the appellant, the
State, as well as the second respondent, had not even bothered
to verify whether the appellant, who was facing criminal trial was
impleaded as a party to the proceedings in the High Court. A
perusal of the order discloses that the High Court appears to
have passed orders on the very first hearing date, unmindful of
the consequences involved. The order does not reflect any of the
issues dealt with by the Learned Sessions Judge, while rejecting
the application of the respondents in seeking to re-examine PW-
9, the second respondent herein. Though orders could have been
passed in this appeal by remitting the matter back to the High
Court, having regard to the time factor and since the entire
material for passing final orders, are available on record and
since all parties were before us, the correctness of the order of
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the Sessions Judge dated 18.11.2009, can be examined and final
orders can be passed one way or the other in the present criminal
appeal itself.
25. With that view, when we examine the basic facts, we find
them as noted by the learned trial Judge being indisputably
contrary to the complaint preferred by the second respondent on
8.7.1999, in the police station in case No. 71/1999, wherein
offences under Section 324/307/34 IPC were reported alongwith
Section 27 of the Arms Act. Based on the report of the doctor, the
chargesheet came to be filed bearing No.127/99, dated
31.10.1999, under Sections 324/307/34 IPC and no charge under
Section 27 of the Arms Ac was laid. The said case was put to trial
and parties were participating. In the course of the trial, the turn
of examination of PW-9, the second respondent came on
16.3.2007, nearly after eight years from the date of occurrence.
Second respondent made a categorical statement in his evidence
that he never made any statement to the police nor was he
beaten on the date of occurrence, nor was he hit by any bullet
shot. Further he made a clear statement that the injury
sustained by him was due to the fall into the hole dug for
constructing a latrine, where some instruments caused the injury
sustained by him. He also made a categorical statement that his
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sons PWs-4 and 5, Babloo and Munna Kumar, were not present at
the place of occurrence since one was staying in a hostel in
Hulasganj and the other was at Ranchi on the date and time of
occurrence, namely, on 07.07.1999, at about 5 p.m. While the
said version of the second respondent was stated to have been
recorded by the Court below on 16.3.2007, and the evidence of
the prosecution was stated to have been closed on 4.4.2007, the
defence evidence seem to have also commenced.
26. In that scenario, the second respondent filed the present
application under Section 311 Cr.P.C. on 24.8.2007, i.e., nearly
after five months after his examination by the trial Court. While
filing the said application, the second respondent claimed that his
evidence tendered on 16.3.2007, was not out of his own free will
and volition, but due to threat and coercion at the instance of the
accused persons, including the appellant. It was contended on
behalf of the second respondent that the accused persons posed
a threat by going to the extent of eliminating him and that such
threat was meted out to him on 15.3.2007, when he was
kidnapped from his wheat field by the accused, along with two
unknown persons.
27. The trial Court having examined all the above factors in its
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order dated 18.11.2009, has held as under:
“….Either at the time of his evidence in Court or
subsequent to his evidence he never made any
complaint to the court or any other officer viz. the
C.J.M. or any police officer that accused persons had
yielded any pressure upon him to turn hostile to the
prosecution and to give a go by to the prosecution
case. He has also argued that he did not also file any
affidavit or case in this regard. Rather when on the
basis of the information dated 30.5.2007 given by the
accused Bindeshwar Yadav Khizersarai Police Station
case No.78/2007 dated 7.6.2008 was registered by
the police the informant Suresh Prasad has filed this
petition and has also got the similar petition filed
through the Additional Public Prosecutor which has got
no legs to stand and the same is fit to be rejected. He
also filed a photocopy of the FIR to Khizersarai Police
Station case No.78/2007 in support of his argument.”
28. After noting the above submissions made on behalf of the
accused, the trial Court held as under:
“….After the evidence of the informant, Suresh Prasad
(PW-9) on 16.03.2007 the Court of Addl. Sessions
Judge, F.T.C.-5 closed the evidence of prosecution on
04.04.2007 after giving opportunity to the learned
Addl. P.P. to produce the remaining witness on
26.03.2007 and 04.04.2007 which he could not do on
the ground that the time limited by the Hon’ble Court
has expired. The Lordships of Supreme Court have
held in Dohiyabhai Vs. State, AIR 1964 SC 1563 that
“Right to re-examine a witness arises only after the
conclusion of cross examination and S.C. 138 says it
shall be directed to the explanation of any part of his
evidence given during cross examination which is
capable of being construed unfavourably too his own
side. The object is to give an opportunity to reconcile
the discrepancies if any between the statements in
examination in chief and cross examination or to
explain any statement inadvertently made in cross
examination or to remove any ambiguity in the
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deposition or suspicion cast on the evidence by cross
examination. Where there is no ambiguity or where
there is nothing to explain, question put in reexamination with the sole object of giving a change to
the witness to unto the effect of the previous
statement should not be asked during re-examination
(S.142). Section 154 is wide in its scope and court can
permit a person calling a witness to but question in
the nature of cross examination at the stage of reexamination provided it take care to give opportunity
to the adverse party to cross examine the witness in
the such case”.
It is clear from the afore quoted
principles decided by the Hon’ble Apex Court and from
the evidence of PW-9 as well as from the instant two
aforesaid petitions filed on behalf of the PW-9 and the
Additional P.P. that the cross examination of PW-9
does not contain any evidence against his evidence in
chief which could be explained or made clear by reexamination of PW-9 through his re-examination vide
Section 138 Evidence Act or Section 311 of the
Criminal Procedure Code.
It is also clear that PW-9 had
filed petition after filing of the case against him by the
accused. As such the two instant petitions are not
maintainable.
However, whether the hostility of PW-9
would have been tested on the touch stone of Section
145 Evidence Act by examining the I.O. as some other
prosecution witness have supported the prosecution
case.
The evidence of the I.O. of the case is taken
would have sufficed the end of justice.”
29. We find that the factors noted by the trial Court and the
conclusion arrived at by it were all appropriate and just, while
deciding the application filed under Section 311 Cr.P.C.
We do
not find any bonafides in the application of the second
respondent, while seeking the permission of the Court under
Section 311 Cr.P.C. for his re-examination by merely alleging that on the earlier occasion he turned hostile under coercion and
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threat meted out to him at the instance of the appellant and
other accused.
It was quite apparent that the complaint, which
emanated at the instance of the appellant based on the
subsequent incident, which took place on 30.5.2007, which
resulted in the registration of the FIR in Khizersarai Police Station in case No.78/2007, seem to have weighed with the second respondent to come forward with the present application under Section 311 Cr.P.C., by way of an afterthought.
If really there
was a threat to his life at the instance of the appellant and the
other accused, as rightly noted by the Court below, it was not
known as to why there was no immediate reference to such
coercion and undue influence meted out against him at the
instance of the appellant, when he had every opportunity to
mention the same to the learned trial Judge or to the police
officers or to any prosecution agency.
Such an indifferent stance
and silence maintained by the second respondent herein and the
categorical statement made before the Court below in his
evidence as appreciated by the Court below was in the proper
perspective, while rejecting the application of the respondents
filed under Section 311 Cr.P.C.
In our considered opinion, the
trial Court, had the opportunity to observe the demeanour of the
second respondent, while tendering evidence which persuaded
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the trial Court to reach the said conclusion and that deserves
more credence while examining the correctness of the said order
passed by the trial Court.
30. In the light of the above conclusion, applying the various
principles set out above, we are convinced that the order of the
trial Court impugned before the High Court did not call for any
interference in any event behind the back of the appellant herein.
The appeal, therefore, succeeds. The order impugned dated
9.12.2010, passed in Crl. M.P. 12454/2010 of the High Court is set
aside. The order of the trial Court stands restored. The trial
Court shall proceed with the trial. The stay granted by this Court
in the order dated 7.3.2011, stands vacated. The trial Court shall
proceed with the trial from the stage it was left and conclude the
same expeditiously, preferably within three months from the date
of receipt of the copy of this order.
……...............................................J.
[T.S. Thakur]
…………….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
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July 04, 2013
