Rahul Jangde vs State Of Chhattisgarh
2021 Latest Caselaw 2033 Chatt

                                                            Page 1 of 7

                                                                NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR
                       CRMP No. 670 of 2021
                  Order Reserved on : 26.07.2021
                  Order Delivered on : 27.08.2021
Rahul Jangde, S/o Sant Ram Jangde, Aged About 18 Years, R/o
Village- Shivrinarayan, District- Janjgir- Champa (C.G.)
                                                        ---- Petitioner
                              Versus
State of Chhattisgarh, Through Station House Officer, Police Station-
Urga, District- Korba (C.G.)
                                                    ---- Respondent

For Petitioner : Mr. Dharmesh Shrivastava, Advocate. For State/Resp. : Mr. Vinod Kumar Tekam, Panel Lawyer.

Hon'ble Shri Justice Narendra Kumar Vyas CAV Order

1. The petitioner has filed this petition under Section 482 of the Cr.P.C. against the order dated 01.07.2021 (Annexure A/1) passed by Additional Sessions Judge (F.T.C.), Korba (C.G.) in Special Case (POCSO) No. 35/2019 (State of Chhattisgarh Vs. Rahul Jangde), by which application filed by the petitioner under Section 311 of the Cr.P.C. has been rejected.

2. The prosecution story, in brief, is that the petitioner abducted the victim/ minor girl and on pretext of marriage committed forcible intercourse with her. On the basis of complaint made by the victim, Crime No. 237/2019 has been registered against the petitioner at Police Station- Urga, District- Korba (C.G.) for committing offence punishable under Sections 363, 376 of I.P.C. and Section 4 of Protection of Children from Sexual Offences Act, 2012. The victim and the petitioner were medically examined and after recording statement of witnesses as well as after completion of entire investigation, charge-sheet was filed and the matter is registered and pending as Special Case (POCSO) No. 35/2019 before

Special Judge (POCSO Act), Korba, District- Korba (C.G.). On 01.07.2021, the petitioner filed two applications under Section 311 of Cr.P.C. for recalling of the PW-2 (Prosecutrix) and PW- 13 (Investigating Officer- N.L. Rathiya). The learned trial Court allowed the application for recalling PW-13 i.e. Investigating Officer, but rejected the application vide impugned order dated 07.07.2021 (Annexure A/1) for recalling and re-examine PW- 2/victim minor girl for some specific question.

3. The learned trial Court vide its order dated 01.07.2021 has rejected the application of the petitioner filed under Section 311 of the Cr.P.C. wherein stand has been taken by the petitioner that in the course of cross-examination and at the time of recording statement of defence witnesses, certain facts have not been brought on record which clearly establishes lacuna, contradiction and omission, therefore, its clarification is required. It has also been recorded by learned trial Court that if any facts which creates doubt on circumstances, then also its clarification is not required by giving permission to re-examination of the accused. It has also been reflected in the order passed by the learned trial Court that if there is any doubt, the benefit goes in favour of the accused, therefore, after detailed order, the learned trial Court has rejected the application filed by the petitioner.

4. Learned counsel for the petitioner would submit that there is serious contradiction and omission in the statement of PW-2, but some questions could not be asked her, that is why the petitioner filed an application under Section 311 of the Cr.P.C. to recall her. He would further submit that the trial Court has committed illegality in not calling PW-2 for further recross- examination, as such, the application under Section 311 of the Cr.P.C. may be allowed. The order of the trial court may be quashed and he may also be allowed for further cross- examination of PW-2. He would place reliance upon the judgment passed by Hon'ble the Supreme Court in V.N. Patil

Vs. K. Niranjan Kumar & others 1. The relevant para of the judgment is extracted below:-

"19. Indisputedly, the facts in the instant case are that the daughter of the appellant died an unnatural death on the intervening night of 2nd/3rd April, 2004 in Bangalore where she was living with the respondents who are facing trial under Sections 498A, 304-B, 302 read with Section 34 IPC and under Sections 4 and 6 of the Dowry Prohibition Act, 1961 and the trial is at the fag end of its closure and the case is listed for hearing.

20. At this stage, application came to be filed by Ld. Additional Special Public Prosecutor under Section 173(5) read with Section 311 CrPC for summoning the witnesses along with the concerned documents to adduce their evidence in connection with the second post mortem conducted on the body of the deceased and after perusal of the record, the factual statement has been recorded by the Ld. Trial Judge in paragraphs 9 & 10 as follows:-

"9. In connection with the same, at the very outset, on record it could be seen that it is contended that the said second postmortem is got conducted in J.J.

Hospital, Mumbai. The second postmortem appears to have been made through the Worli Police, Mumbai by lodging the complaint thereat by the members of the family of the deceased, wherefore, at the very outset, it is not the postmortem having got made privately, as it is through the Police.

10. Notwithstanding as to whether the Worli Police have further continued the investigation or otherwise or directly connected to the instant case in hand, it is clear from the records as per Exhibits P-

136, P-140 to P-142 which are available on record that the PW-44/Investigating Officer had initiated the correspondence with the Worli Police as well as the Doctors of J.J. Hospital seeking for sending the copy of the second postmortem, which clearly goes to indicate that the very intendment prevailed with the PW- 44/Investigating Officer in corresponding with the said

1 AIR 2021 SC 1276

Worli Police, Mumbai and Mumbai Doctors in accordance with the Exhibits P-136 and P-142, reveals that the said copy of the second postmortem conducted at the J.J. Hospital, Mumbai, was required for the investigation by him in Bengaluru, by considering it as the part and parcel of his investigation."

21. What had further transpired for summoning the witness along with the documents in connection with the second post mortem report has been noticed in paragraph 18 of the judgment of the Trial Court which is extracted hereunder:-

"18. It is also significant to note that, the Doctor by name Bhimappa Havanur having stated to have conducted the first postmortem at Bowring Hospital in Bengaluru, has turned hostile to the prosecution, according to the prosecution, by giving the two different contradictory and divergent opinions in connection with the cause of death, wherefore, now, it is equivalently incumbent upon this Court to determine and trace-out the real cause of death of the deceased through the medical experts only who have conducted the postmortem. Therefore, to make out the reality under the peculiar circumstances of the PW 27 having turned hostile to the prosecution by giving the contradictory and two divergent opinions, certainly the efforts being endeavoured to put in by the prosecution to summon the proposed witnesses along with the documents certainly need to be taken into consideration in the positive sense, only with an intention to see that the miscarriage of justice in any manner is prevented at any point of spell and juncture"."

5. Learned counsel for the petitioner would also rely upon the judgment passed by this Court in Yogesh Bajpai Vs. State of Chhattisgarh & others2, Dilip Mishra & another Vs. State of Chhattisgarh3, Ashwani Kumar & others Vs. State of Chhattisgarh & others4 & Dhiraj Kumar @ Golu Sharma Vs. State of Chhattisgarh5.

4    2004 (2) MPJRCG 148
5    2003 (1) CGLJ 24

6. On the other hand learned State counsel would submit that there is no irregularity or illegality in the order passed by the Court below.

7. I have heard learned counsel for the parties and perused the documents placed on record.

8. For deciding the issue raised in this petition, it is necessary to apt explanation of provision of Section 311 of the Cr.P.C., which reads as under:-

"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."

9. From pleading of the parties and the material placed on record, it is quite vivid that the petitioner wants to fulfill his lacuna as he has stated in his application that there are serious contradictions and omissions in the statement of PW- 2, which have been arisen after cross-examination of other witnesses, some legal issues have been left during course of cross-examination of PW-2. It is well settled by the Hon'ble Supreme Court in State of Haryana Vs. Ram Mehar & others6, that the lacuna of case either by Prosecution or defense cannot be fulfilled by exercising power conferred under Section 311 of the Cr.P.C. to the Courts. The Hon'ble Supreme Court has held as under:-

"40. In the case at hand, the prosecution had ex-

amined all the witnesses. The statements of all the accused persons, that is 148 in number, had been recorded under Section 313 CrPC. The defence had examined 15 witnesses. The foundation for recall, as is evincible from the applications filed, does not even remotely make out a case that such recalling is necessary for just decision of the case

6 2016 (8) SCC 762

or to arrive at the truth. The singular ground which prominently comes to surface is that the earlier counsel who was engaged by the defence had not put some questions and failed to put some ques- tions and give certain suggestions. It has come on record that number of lawyers were engaged by the defence. The accused persons had engaged counsel of their choice. In such a situation recall- ing of witnesses indubitably cannot form the foun- dation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occa- sion when such a ground may weigh with the court, but definitely the instant case does not arouse the judicial conscience within the estab- lished norms of Section 311 CrPC for exercise of such jurisdiction.

41. It is noticeable that the High Court has been persuaded by the submission that recalling of wit- nesses and their cross-examination would not take much time and that apart, the cross-examina- tion could be restricted to certain aspects. In this regard, we are obliged to observe that the High Court has failed to appreciate that the witnesses have been sought to be recalled for further cross- examination to elicit certain facts for establishing certain discrepancies; and also to be given certain suggestions. We are disposed to think that this kind of plea in a case of this nature and at this stage could not have been allowed to be enter- tained.

42. At this juncture, we think it apt to state that the exercise of power under Section 311 CrPC can be sought to be invoked either by the prose- cution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the cus- tody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim repre- sents the collective. The cry of the collective may not be uttered in decibels which is physically audi- ble in the court premises, but the Court has to re- main sensitive to such silent cries and the ago- nies, for the society seeks justice. Therefore, a balance has to be struck. We have already ex- plained the use of the words "magnanimous ap- proach" and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are

of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance.

43. In view of the proceeded analysis we allow the appeals, set aside the order passed by the High Court and restore that of the learned trial Judge. We direct the learned trial judge to proceed with the trial in accordance with the law."

10. Hon'ble the Supreme Court in V.N. Patil (Supra) while affirming the judgment of the trial Court in para 21 of the judgment, has recorded the finding that Doctor by name Bhimappa Havanur having stated to have conducted the first postmortem at Bowring Hospital in Behgaluru, has turned hostile to the prosecution and the second postmortem was conducted on the body of the deceased, therefore, the witness doctor, who conducted second postmortem along with the concerned doctor, was necessary to throw light on the case, but, this is not the situation in the present case.

11. In the instant case, witnesses have been examined, cross-

examined and credibility of the witnesses have also been tested before the trial Court, therefore, the present petition filed by the petitioner for further cross-examination of the witness PW-2 seems to be an after thought story of defence to prolong the trial. Even otherwise, it is well settled by Hon'ble the Supreme Court that lacuna cannot be fulfilled in the garb of power conferred under Section 311 of the Cr.P.C., therefore, the trial Court has not committed any irregularity or illegality in passing the impugned order, warranting interference by this Court.

12. In view of the above, the instant petition is liable to be and is hereby dismissed.

Sd/-

(Narendra Kumar Vyas) Judge Arun