Chattisgarh High Court

Malikram Alias Jagdish vs State Of Chhattisgarh on 25 October, 2021

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                                                                 NAFR
           HIGH COURT OF CHHATTISGARH, BILASPUR

                       CRMP No. 375 of 2020

                      Reserved on : 17.08.2021

                      Delivered on : 25.10.2021

1.    Malikram @ Jagdish, S/o Babulal Chandra, aged about 28
      years.
2.    Babulal, S/o Late Bodhram Chandra, aged about 60 years.
3.    Laxmin Bai, W/o Babulal Chandra, aged about 55 years.
      All are R/o Akaltara, Police Station- Baradwar, District- Janjgir-
      Champa (C.G.)
                                                       ---- Petitioners
                               Versus
State of Chhattisgarh, through - Station House Officer, Police Station-
Baradwar, District- Janjgir-Champa (C.G.)
                                                       ---- Respondent

For Petitioners : Mr. Ajay Ayachi, Advocate. For State/ Respondent : Mr. Gurudev I. Sharan, Govt. Advocate.

Hon'ble Shri Justice Narendra Kumar Vyas

C.A.V. ORDER

1. The petitioners have filed this petition under Section 482 of the Cr.P.C. against the order dated 12.12.2019 (Annexure P/1) passed by First Additional Sessions Judge, Sakti, District- Janjgir-Champa (C.G.) in Session Trial No. 03/2017 (State of Chhattisgarh Vs. Malikram & others), by which application filed by the petitioners under Section 311 of the Cr.P.C. for cross- examination of the witnesses on their own expenses, has been rejected.

2. The brief facts as reflected from the petition, are that the petitioners were prosecuted for commission of offence under Sections 498A, 304B & 34 of IPC and in alternate Section 302/34 of IPC on the allegation that they treated Smt. Khageshwari Chandra (deceased) with cruelty in connection

with demand of Rs. 10 lacs as dowry and also committed her murder by pressing her neck with common intention on 28.10.2018 in between 8 to 10:45 p.m.

3. On 14.07.2017, the trial Court has framed the charge and thereafter, prosecution has examined witnesses namely Mekhram (PW-1), Premlata Chandra (PW-2), Tirithram Chandra (PW-3), Toshak Prasad Chandra (PW-4), Purnima Chandra (PW-5), Shakuntala Chandra (PW-6), Manoj Chandra (PW-7), Ashwani Chandra (PW-8), Gorilal Chandra (PW-9), Hemprasad Yadav (PW-10), Dr. Saroj Kachha (PW-11), Santoshibai Chandra (PW-12), Dilip Kumar Prajapati (PW-13), Reshamlal Chandra (PW-14), Kiritram Chandra (PW-15), Buddheshwar Prasad Patel (PW-16), Suryapal Singh Netam (PW-17), Ramkrishna Dubey (PW-18), B.R. Bakre (PW-19) & Ajay Shankar Tripathi (PW-20).

4. The petitioners preferred an application under Section 311 of the Cr.P.C. before learned trial Court for re-examination of the witnesses namely Mekhram (PW-1), Premlata Chandra (PW-2), Tirithram Chandra (PW-3), Toshak Prasad Chandra (PW-4), Purnima Chandra (PW-5), Shakuntala Chandra (PW-6), Manoj Chandra (PW-7), Ashwani Chandra (PW-8), Gorilal Chandra (PW-9), Hemprasad Yadav (PW-10) & Kiritram Chandra (PW-

15) on the ground that the earlier advocate has cross-examined the witnesses keeping in mind the fact that the petitioners are involved for committing offence punishable under Section 304B IPC, but in the present case, charges have been framed under Section 302 IPC and also Section 302/34 IPC, therefore, the earlier counsel engaged by the accused/ petitioners has not cross-examined on this material point, as such, prays for grant of permission to re-examine the witnesses namely Mekhram (PW-1), Premlata Chandra (PW-2), Tirithram Chandra (PW-3), Toshak Prasad Chandra (PW-4), Purnima Chandra (PW-5), Shakuntala Chandra (PW-6), Manoj Chandra (PW-7), Ashwani Chandra (PW-8), Gorilal Chandra (PW-9), Hemprasad Yadav

(PW-10) & Kiritram Chandra (PW-15) by issuing them summons on the expenses incurred by the petitioners. The learned trial Court vide impugned order dated 12.12.2019 has rejected the application filed by the petitioners under Section 311 of the Cr.P.C. by recording a finding that lk{kh es[kjke] 'kdqaryk] frfjFkjke] rks"kd] iwf.kZek pUnzk] eukst pUnzk] v'ouh pUnzk] xkSjhyky pUnzk] gseizlkn ;kno] fdfjFkjke] izseyrk ds lk{; ds voyksdu ls ;g nf'kZr gksrk gS fd mDr lkf{k;ksa dk rRdkyhu cpko vf/koDrkx.k }kjk foLr`r :i ls izfrijh{k.k fd;k x;k gSA ,slh fLFkfr esa ;g bl Lrj ij rkfRod fcanqvksa ds vk/kkj ij izfrijh{k.k Hkwyo'k ugha fd;s x;s gksus ds vk/kkj ij pkgh x;h iqu% izfrijh{k.k dh vuqefr ugha nh tk ldrh gSA oSls Hkh vkosnu esa fdu rkfRod fcanqvksa ij izfrijh{k.k ugha fd;k x;k gS] mls vkosnu i= esa Hkh Li"V ugha fd;k x;k gSA bl izdkj izLrqr vkosnu varxZr /kkjk 311 na-iz-la- Lohdkj fd;s tkus ;ksX; ugha gksus ls fujLr fd;k tkrk gSA

5. Learned counsel for the petitioners would submit that there are serious contradictions and omissions in the statements of witnesses, as such, the application under Section 311 of the Cr.P.C. be allowed. The order of the trial court may be quashed and he may also be allowed for further cross-examination of witnesses namely Mekhram (PW-1), Premlata Chandra (PW-2), Tirithram Chandra (PW-3), Toshak Prasad Chandra (PW-4), Purnima Chandra (PW-5), Shakuntala Chandra (PW-6), Manoj Chandra (PW-7), Ashwani Chandra (PW-8), Gorilal Chandra (PW-9), Hemprasad Yadav (PW-10) & Kiritram Chandra (PW-

15). He had placed reliance upon the judgment passed by Hon'ble the Supreme Court in The State Represented By the Deputy Superintendent of Police Vs. Tr. N. Seenivasagan 1, which is extracted below:-

"13. In our view, having due regard to the nature and ambit of Section 311 of the CrPC, it was appropriate and proper that the applications filed

2021 (3) Scale 629

by the prosecution ought to have been allowed. Section 311 provides that any Court may, at any stage of any inquiry, trial or other proceedings under the CrPC, 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". The true test, therefore, is whether it appears to the Court that the evidence of such person who is sought to be recalled is essential to the just decision of the case. "

6. He would also place reliance upon the judgment passed by Hon'ble the Supreme Court in V.N. Patil Vs. K. Niranjan Kumar & others2. The relevant paras of the judgment are 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. 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

AIR 2021 SC 1276

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 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"."

7. On the other hand, learned State counsel would submit that there is no irregularity or illegality in the order passed by the Court below, therefore, the present petition is liable to be dismissed.

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

9. 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."

10. From pleading of the parties and the material placed on record, it is quite vivid that the petitioners want to fulfill their lacuna as they have stated in their application that there are serious contradictions and omissions in the statements of prosecution witnesses. It is well settled by the Hon'ble Supreme Court in State of Haryana Vs. Ram Mehar & others3, 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 examined 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

2016 (8) SCC 762

a case that such recalling is necessary for just decision of the case 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 questions 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 recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occasion when such a ground may weigh with the court, but definitely the instant case does not arouse the judicial conscience within the established 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 witnesses and their cross-examination would not take much time and that apart, the cross- examination 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 crossexamination 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 entertained.

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 prosecution 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 custody 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 represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words "magnanimous approach" 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."

11. 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 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.

12. 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 petitioners for further cross-examination of the witnesses namely Mekhram (PW-1), Premlata Chandra (PW-2), Tirithram Chandra (PW-3), Toshak Prasad Chandra (PW-4), Purnima Chandra (PW-5), Shakuntala Chandra (PW-6), Manoj Chandra (PW-7), Ashwani Chandra (PW-8), Gorilal Chandra (PW-9), Hemprasad Yadav (PW-10) & Kiritram Chandra (PW-15) seems to be an afterthought 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 orders,

warranting interference by this Court.