Mahendra Daulatrao Ambilduke vs State Of Mah. Thr. Pso Ps Mouda ...
2021 Latest Caselaw 12419 Bom

Order                                                                                          1appa194
                                                    1

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH, NAGPUR.
                    CRIMINAL APPLICATION (APPA) NO. 194/2021 IN
                          CRIMINAL APPEAL NO. 130/2021
                (Mahendra Daulatrao Ambilduke (In Jail) Vs. State of Maharashtra)


Office notes, Office Memoranda of
Coram, appearances, Court's orders                           Court's or Judge's Orders
or directions and Registrar's orders.

                                          Shri R. Vyas, Advocate for the applicant/appellant.
                                          Shri M. J. Khan, APP for non-applicant/State.
                                          Shri G. S. Sengar, Advocate for informant.



                                                        CORAM : VINAY JOSHI, J.

DATE : 02.09. 2021.

Heard.

2. The appellant (accused) is seeking for re-

examination of witness in terms of Section 311 read

with Section 391 of the Code of Criminal Procedure

(Code). In brief, it can be said that certain omissions

were put to the prime witness i.e. PW-1 victim.

However, they were not got proved by putting to the

recorder of her statement i.e. PW-15 Police Officer. In

order to prove the omissions, the limited exercise has

been sought in the shape of recalling PW-15 for said

purpose.

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3. The State as well as the informant

resisted this application by stating that at appellate

stage, such application cannot be entertained. The

appellant has exhausted fullest opportunity of cross-

examining PW-15 in the Trial Court. He has engaged

Advocate of his choice. The reason of failure of

Advocate to put the omissions would not sustain. A

witness cannot be recalled to fill up the lacuna. With

these submissions, application is prayed to be rejected.

Learned APP in his resistance by placing reliance on

the decision of Hanuman Vs. State of Rajasthan, 2008

(15) SCC 652 would submit that the scope under

Section 311 of the Code is quite limited.

4. Brief reference of background facts is

needed to decide this application. At the instance of

report lodged by the victim girl, crime was registered

against appellant/accused for the offence of rape and

penetrative sexual assault. On denial of guilt, the

prosecution has examined in all 19 witnesses to

establish his guilt. After full-fledged trial, the learned

Judge held that the prosecution has duly proved the

charged offences and ultimately convicted him for the

offence punishable under Sections 376(2)(f)(n) of the

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Indian Penal Code, Sections 8 and 12 of the Protection

of Children from Sexual Offences Act (POCSO). The

Trial Court has imposed sentence to suffer rigorous

imprisonment for 10 years along with fine of Rs.

30,000/-. Being aggrieved and dissatisfied by the

judgment and order of conviction, the accused has

come up in appeal in terms of Section 374(2) of the

Code. This Court has not suspended execution of

sentence of the appellant/accused. At this stage, this

application is preferred to recall PW-15 for limited

purpose as mentioned herein before.

5. With the assistance of both sides, I have

gone through the evidence of PW-1 victim, recorded by

the Trial Court vide Exh. 23. In para 10 of the

evidence (cross-examination), various omissions

running into two pages have been put to the witness.

In response, the witness replied that she stated to the

Police in her statement about all alleged omissions

which were put to her. Naturally, as the witness has

stated that she told said portion to the Police, it was

incumbent upon defence to re-put those omissions to

the recorder of statement. Contextually, I have gone

through the statement of PW-15 Smt. Sweta

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Adityanath Mishra, PSI who has recorded the

statement of victim. Notably not a single omission

was put to the witness on behalf of accused, meaning

thereby, the omissions were not got proved through

the recorder of statement. So far as said factual

position is concerned, there is no quarrel between the

parties.

6. Whilst resisting the application, learned

APP would submit that the evidence of victim on

material aspect remained unshattered. He would

submit that it is not expected that all minute details

shall form part and parcel of First Information Report

(FIR) since it is not an encyclopedia. According to

him, the evidence of minor victim was sufficient to

establish the charged offences. I am afraid to make

any comment on this aspect since it is a matter of merit

to be decided at the time of final adjudication.

7. The scope of this application is very much

limited to the extent of exercising discretion at

appellate stage in terms of Section 311 read with

Section 391 of the Code. The learned counsel for

victim also made submission that a gruesome act was

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committed by a teacher, however, this being part of

merit requires no consideration at this stage.

8. In Trial Court application for recall was not

filed, meaning thereby first time in appeal, learned

counsel for the appellant in his wisdom thought it fit to

resort said provision. Be that as it may, there is no

legal bar to invoke the provision of Section 311 at

appellate stage. On the said premise, learned counsel

for the appellant has relied on the decision of this

Court in case of Mr. Mahesh S/o Ramdatta Ahirrao Vs.

State of Maharashtra & Ors., 2021 ALL MR (Cri) 1127

which says that the Appellate Court can exercise power

under Section 311 of the Code. However, it has to

take recourse to the provision of Section 391 of the

Code.

9. Learned counsel for the appellant candidly

submits that it was a mistake of counsel appearing for

accused in the Trial Court of not putting either of the

omissions to the recorder of a statement. He would

submit that the accused is illiterate in the sense in legal

affair and therefore, due to inadvertent mistake of

counsel, he cannot be punished. It is argued that the

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accused was charged and now convicted under the

stringent statute namely POCSO Act, which bears a

presumption against the accused. The only effective

tool available in the hands of accused is of cross-

examining the witness to show falsity or to

improbablize the prosecution case. He reiterated that

only for the limited purpose of putting omissions to the

recorder of statement i.e. PW-15 recall is sought.

According to him, the said exercise would not cause

prejudice to the other side.

10. By placing reliance on the decision of the

Supreme Court in case of Zahira Habibulla H. Sheikh

& anr. Vs. State of Gujarat & ors. (2004) 4 SCC 158 ,

learned counsel for the appellant would submit that a

fair trial is objective of criminal justice system and it is

part of Article 21 of the Constitution of India. The

concept of fair trial has been explained by the Supreme

Court in the said case. It is undeniable that the

primary aim of the criminal trial is to ascertain the

truth. Denial of fair trial amounts to causing injustice.

There can be no doubt about said general proposition.

Per-contra, learned APP would submit that recall of

witness shall be permitted in exceptional circumstances

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but not on mere asking. In order to buttress said

submission, reliance is placed on the decision of the

Supreme Court in case of State (NCT of Delhi) Vs. Shiv

Kumar Yadav and anr. (2016) 2 SCC 402. In said

case, the Supreme Court while dealing with the

powers under Section 311 of the Code has expressed

that though the powers are wide and uncontrolled,

they are to be exercised judiciously. Unless there are

valid reasons, it should not be exercised. The Court

while dealing with the application under Section 311

of the Code should be mindful of the fact about

consequential harassment to the victim or witnesses by

recall. It is also expressed that mere change of counsel

cannot be a ground to recall the witness.

11. In the said case, application for recall of all

28 prosecution witnesses was filed. The Trial Court

rejected the said application, however the High Court

has reversed the order. In the light of said factual

scenario, it was held that besides general observation,

there were no tangible reasons for recall of all the

witnesses therefore, rejection of recall of witnesses was

affirmed.

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12. For the sake of convenience, the provision

of Section 311 is reproduced as below:-

"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."

13. Section 311 of the Code in its former part

speaks about the discretion of the Court whilst in later

part mandates that, if it is essential to recall and re-

examine any person referred in the former part for the

just decision of the case, the Court is obliged to

exercise the said power. There cannot be a straight-

jacket rule to expound in which manner the exercise of

power is to be tested. Width of power under Section

311 of the Code is much wider. The Legislatures have

not bound the power under specific situation but wide

discretion is left with the Court to exercise the power

particularly when the Court forms its opinion that it is

essential for the just decision of the case.

Undoubtedly, the Section itself permits to use the

power at any stage obviously including the appeal.

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The meaningful reading of Section 311 of the Code

would suggest that widest powers have been invested

with the Courts to exercise discretion in befitting case.

14. True in the Trial Court, the appellant has

not sought for recall of witness and therefore normally,

at this late stage, one should be slow in using

discretion. However, at the inception, the appellant

has made it clear that the recall of PW-15 was not for

general cross-examine but it is limited only to the

extent of putting omissions to the recorder. The

witness sought to be recalled is the Police Officer

therefore, there can be hardly a question of harassment

of witness. The accused is in Jail therefore, there

cannot be a routine angle to look into the matter like

filing such applications for protracting trial.

15. The case is peculiar one. The accused is

not seeking to recall the victim or other witnesses. In

that case, one can say that recall is to fill up the lacuna.

The counsel defending in the Trial Court has very

much put all omissions to the victim but appears to be

forgot to get it proved by putting them to the recorder.

The scope of recall was narrowed down by the

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appellant by bonafidely stating that only for the

purpose of proving the omissions, recall is sought.

After all the purpose of Court is to reach to the truth

by way of conducting fair trail. The Legislative intent

in enacting section 391 of the Code appears to be the

empowerment of the Appellate Court to see that

justice is done between the parties. If the Appellate

Court finds it appropriate that such evidence is

necessary then it may venture into said exercise. If

PW-15 - Police Officer is recalled with clear

understanding that recall is only for putting omissions

then there would be no prejudice to the other side. Of-

course, what is the worth of those omissions, its

evidentiary value and use is a matter to be appreciated

at the time of final hearing.

16. Particularly considering the limited

purpose of recall, for giving fair opportunity, it can be

allowed with specific directions . Always, there are

chances of protracting the proceedings when the

witness is recalled. Section 391 of the Code gives

discretion to the Appellate Court to either take such

additional evidence itself or direct it to be taken by the

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Magistrate. Since the recall is for limited purpose the

said exercise can be done by this Court. So also it

would not leave any scope of deviating from the

limited permission, as well as wold expedite the

proceeding. In view of that, following order:-

(I) Application stands allowed and disposed

of.

(II) PW-15 Smt. Sweta Adityanath Mishra, PSI

is recalled strictly for the purpose of putting omissions

to the witness which are already put to PW-1 victim.

(III) State is directed to keep PW-15 present in

this Court for the purpose of recording her evidence.

17. At this juncture, learned APP prayed to

tentatively keep the matter on 07.09.2021 for taking

instructions about availability of PW-15 for giving

evidence.

18. Stand over to 07.09.2021.

JUDGE

Gohane.