Jaykant Nayak vs State Of Chhattisgarh
2022 Latest Caselaw 7322 Chatt

                                          1

                                                                                 AFR

                 HIGH COURT OF CHHATTISGARH, BILASPUR

                              CRMP No. 1950 of 2022

   1. Jaykant Nayak, S/o Suraj Nayak, aged about 24 Years,

   2. Kamal Kishore Panda, S/o Kripasindhu Panda, aged about 27 Years,

      Both are R/o Village Bundeli, Taluka, Baramkela, District Raigarh (C.G.)

                                                                        ----Petitioners

                                       Versus

    State of Chhattisgarh, Through Station House Officer, Police Station
     Sarangarh, District Raigarh (C.G.)

                                                                      ----Respondent



For Applicants     Mr. Sanjay Agrawal, Advocate.
For State          Mr. Gurudev I. Sharan, Government Advocate.

                    Hon'ble Shri Justice Radhakishan Agrawal
                                 Order on Board

06/12/2022

   1. With the consent of the parties, the matter is heard finally at the motion

      stage.


   2. Challenge in this petition under Section 482 of CrPC is to the order dated

      01.10.2022 (Annexure P-1) passed by learned Additional Sessions Judge,

      Sarangarh, District Raigarh (CG) in S.T. No.11/2017 thereby rejecting

      application of petitioner No.2 filed under Section 311 of the Code of

      Criminal Procedure, 1973 (henceforth "the Code") seeking re-cross

      examination of witness Ruchit Nayak (PW-14).


   3. Facts

of the case, in brief, are that petitioners are facing criminal trial under

Sections 307, 201, 120-B, 34 of IPC on the allegation that on 8.6.2017,

petitioners have attacked and assaulted victim by means of axe causing

serious injuries to him. During course of trial, on 17.7.2019 statement of

victim Ruchit Nayak (PW-14) was recorded by the Court below. After

examination of victim, petitioner No.2 realized that victim (PW-14) was

though effectively cross-examined only on behalf of petitioner No.1, but not

in respect of petitioner No.2 herein. Therefore, application under Section

311 CrPC to recall victim (PW-14) for re-cross examination, is filed

mentioning the points on which re-cross examination of PW-14 is to be

done. However, the Court below vide order impugned rejected said

application holding that reasons set forth in application to recall witness for

re-cross examination do not appear to be bonafide.

4. Learned counsel for petitioners would submit that victim (PW-14) was

cross-examined by counsel for petitioner No.1 representing him before

Court below and the counsel representing petitioner No.2 before the Court

below under a bona fide belief that cross-examination of victim in respect of

petitioner No.2 on vital points must have been done by him and therefore,

during cross-examination of victim by him, he did not put relevant questions

to him. However, after going through certified copy of deposition sheet of

victim (PW-14), petitioner No.2 was surprised to know that there is no

cross-examination of victim with respect to his evidence relating to

petitioner No.2, particularly in Paragraph-2 wherein victim stated him to be

assailant who gave axe blow to him. Therefore, an application under

Section 311 of CrPC was moved on behalf of petitioner No.2 to recall victim

(PW-14) for re-cross examination specifically mentioning the questions

required to be put to the victim (PW-14) during his re-cross-examination.

However, the Court below ignoring settled proposition of law rejected said

application holding that reasons assigned in application for recalling

witnesses are not sufficient. He submits that there was no proper cross-

examination of victim (PW-14) on behalf of petitioner no.2 and therefore, it

is necessary to re-cross examine victim (PW-14) with a view to ask certain

questions relevant to the statement made by PW-14 with respect to

petitioner No.2, as detailed in application. He submits that purpose of re-

examination is only to get the clarifications with respect to allegations

appearing in cross-examination of PW-14 on behalf of petitioner No.1 and

not to introduce totally new facts, which have no concern with cross-

examination. Petitioner No.2 is facing trial which may entail penal

punishment i.e. imprisonment upto 10 years, therefore, he should be

afforded opportunity to effectively defend his case. It is submitted that no

prejudice would be caused to the prosecution if concerned witness is

summoned for re-cross examination. On the contrary, if said witness is not

summoned for re-cross-examination, irreparable loss would be occurred to

petitioner No.2 and it may lead to conviction of petitioner No.2 also. Hence,

in the interest of justice, the order impugned being illegal and without

application of judicial mind is liable to be set aside and application filed on

behalf of petitioner No.2 deserves to be allowed.

5. On the other hand, learned State Counsel submits that while rejecting

application of petitioner No.2 filed under Section 311 CrPC, the reasons

assigned by the Court below are in accordance with law. There is no

infirmity or illegality in impugned order warranting interference by this Court.

6. I have heard learned counsel appearing for the parties and perused the

impugned order as well as documents placed on record.

7. Deposition sheet of victim (PW-14) is placed along with petition as part of

Annexure P-1. A glance of statement of victim (PW-14) would reveal that

on 17.7.2049 he was examined by the prosecution and in paragraph-2 of

his statement he has specifically stated that petitioner No.2 assaulted him

from his back by means of axe as a result he fell down and became

unconscious. This witness was cross-examined on behalf of accused No.1

(petitioner No.1 herein) in detail. Thereafter, on 3.8.2019 further cross-

examination of victim (PW-14) on behalf of accused No.2 (petitioner No.2)

was commenced and during cross-examination, counsel representing

petitioner No.2 herein did not ask any question from victim (PW-14) with

respect to his statement in Para-2 of his examination-in-chief. In such

circumstance, petitioner No.2 sought to recall PW-14 for re-cross-

examination mentioning that the counsel omit to cross-examine PW-14 on

some important points and the points on which his counsel omitted to

cross-examine the victim, were also mentioned in application. Vide order

impugned the Court below denied opportunity to re-cross examine PW-14.

8. A fair trial is the main object of criminal procedure, which may entail interest

of accused, victim and of the society and therefore, fair trial includes grant

of fair and proper opportunities to the person concerned and the same must

be ensured as this is a constitutional as well as human right.

9. In the matter of U.T. of Dadra & Nagar Haveli and another v. Fatehsinh

Mohansinh Chauhan reported in (2006) 7 SCC 529, their Lordships of the

Supreme Court while considering the scope of Section 311 of the Code and

also considering the various pronouncement of judgments has held in

paragraph 15, which reads as under:-

"15. A conspectus of authorities referred to above would show that the principle is well settled that 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 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 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."

This observation has been made by Hon'ble Apex Court in an application under Section 311 of the Code filed by the prosecution whereas in the instant case, application under Section 311 of the Code has been filed by the applicant/accused but principle with regard to exercise power under Section 311 of the Code held by Hon'ble Supreme Court is applicable for both the parties, so that justice could be done.

10. In the matter of Natasha Singh v. CBI (State) reported in (2013) 5 SCC

741, their Lordships of the Supreme Court has held as under :-

"15. 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 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."

11. In the instant case, petitioner No.2 claimed to have omitted to put some

important crucial questions to PW-14 at the time of his cross-examination

and it is for this purpose, petitioner No.2 sought to recall PW-14 for re-cross

examination, specifically mentioning the points on which re-cross

examination is to be done. Points mentioned in application under Section

311 CrPC do not suggest that allowing prayer to recall of PW-14 would

amount to granting an opportunity to petitioner No.2 to fill up lacuna in his

case or to introduce altogether new facts which have not come in cross-

examination. PW-14 being victim is a star witness of case and if his

evidence goes unrebutted, it would lead to conviction against petitioner

No.2, which would cause serious prejudice to him. Whereas, in the opinion

of this Court, no prejudice would be caused to prosecution or harassment to

victim, in recall of victim (PW-14) for re-cross-examination on some points

on which cross-examination was not done on previous occasion.

12. In my considered view, cross-examination of a witness happens to be more

important, for the reason that examination-in-chief is nothing but unverified

version of the witness and it is only during the course of cross-examination

that necessary information can be elicited and only such part of the

evidence, which withstood cross-examination, becomes acceptable. When

a cross-examiner inadvertently omits to cross-examine a witness on an

important point, he may, with the leave of the Court, re-call that witness for

re-cross-examination. Of course, the Court cannot certify the competence

or otherwise of a defence counsel, but at the same time the Court cannot

shut it eyes in situation where cross-examination of a material witness is

not just ineffective but practically nil, as happened in instant case in respect

of petitioner No.2.

13. For the foregoing reasons, keeping in mind object of Section 311 CrPC,

above rulings of Hon'ble Supreme Court and facts of the case, for meeting

the ends of justice, this petition is allowed and the order impugned is

hereby set aside, subject to payment of cost of Rs.5,000/- to the District

Legal Services Authority, Raigarh. The Court below is directed to permit

re-cross-examination of Ruchit Nayak (PW-14). The Court below may fix a

specific date for re-cross-examination of Ruchit Nayak (PW-14) and direct

both sides to be present on such date. Petitioner No.2 shall also bear

traveling expenses etc. of witness sought to be recalled.

14. Needless to mention that after re-cross examination of above mentioned

witness, the prosecution be afforded opportunity for his re-examination in

that regard, if required.

15. Certified copy as per rules.

Sd/-

(Radhakishan Agrawal) Judge

Akhilesh