Chattisgarh High Court

Ajeet Diwakar vs State Of Chhattisgarh on 22 July, 2022

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                                                            AFR

       HIGH COURT OF CHHATTISGARH, BILASPUR

                  CRMP No. 1074 of 2022

   1. Ajeet Diwakar S/o Shri Sangat Ram Diwakar Aged About
      25 Years R/o Village Gidhauri, Police Station Urga,
      District Korba Chhattisgarh.

   2. Sangat Ram Diwakar S/o Shri Puniram Diwakar Aged
      About 54 Years R/o Village Gidhauri, Police Station Urga,
      District Korba Chhattisgarh.             --- Petitioners

                            Versus

      State of Chhattisgarh through Station House Officer,
      Police Station Urga , District Korba Chhattisgarh.
                                              --- Respondent

For the Petitioners : Mr. Anant Bajpai, Advocate. For the State : Mr. Lalit Jhangde, Govt. Advocate

Hon'ble Shri Justice Goutam Bhaduri

Order on Board

22 .07.2022

1. The instant petition has been filed against the order

dated 09.03.2022 whereby an application u/s 311 of the

Code of Criminal Procedure to recall the witnesses has

been dismissed.

2. The brief facts of the case are that the petitioners are

facing trial under section 304-B of IPC. Petitioner no.1 is

husband and petitioner no.2 is father-in-law of deceased.

Both were prosecuted for the reason that the deceased

Anuradha Diwakar committed suicide on 22.11.2020 by

consuming poison. She was married on 24.04.2018.

Since the death was unnatural and was within 7 years of

marriage, after conducting the inquiry, the charge sheet

was filed. The statement of father Bhagirathi (P.W.1) was

recorded before the Court on 27.11.2011. subsequently,

the application which came to be filed to recall the

witness for re-examination of witness was dismissed.

3. Learned counsel for the petitioner would submit that the

merg statement of the father of deceased was recorded

on 23.11.2020 by the Executive Magistrate and the

statement u/s 161 CrPC though is part of the charge

sheet which was recorded on 23.06.2021 but was not

confronted during evidence. Whereas while Bhagirathi,

the father of deceased, was examined, after declaring

him hostile, the learned Public Prosecutor wrongly got

exhibited the merg statement as Ex.P-1 under the

caption of Police statement as if it was recorded u/s 161

CrPC. He would submit that it shows the fabrication and

falsity since the statement u/s 161 which was actually

recorded by the police was not confronted during the

cross-examination of P.W.1, therefore, serious lacuna

occurred in such examination and because of such

wrong, undue advantage would be given to prosecution

causing prejudice to the petitioner and he cannot be

made to suffer. It is contended that inconsistency in the

statement can always be confronted, otherwise it would

cause prejudice to the petitioner as he would suffer an

irreparable loss. He placed reliance on a decision of the

Supreme Court in V.N. Patil versus K. Niranjan

Kumar (2021) 3 SCC 661 and submits that failure of

justice on account of mistake of either party in bringing

valuable evidence on record cannot be allowed to

sustain, consequently the court below should have

allowed the application under Section 311 of Cr.P.C. He

further submits that still the evidence of prosecution has

not been concluded, therefore, this petition may be

allowed so as to meet the ends of justice.

4. Per contra, learned counsel for the respondent would

submit that on mere technicalities, the application has

been filed and the rejection order of the court below is

well merited and does not call for any interference. He

contends that if the petitioners fail to confront the

statement of a particular witness that cannot be a

reason to recall the witness. He further submits that

specific nature of mistake, which has been pointed out

here, was not shown in the application u/s 311 CrPC,

therefore, the learned court below was right in rejecting

the same.

5. Heard learned counsel for the parties and also perused

the statement of Bhagirathi, father of deceased, who

was examined as P.W.1. Subsequent to his examination,

the application to recall the said witness for re-

examination was filed. After his examination-in-chief

uptil 3rd para he was declared hostile and thereafter,

the document Ex.P-1 was exhibited. The statement as

exhibited would show that it was recorded on

23.11.2020 and is a merg statement but the statement

of the witness would show that the same was confronted

to be a police statement meaning thereby it was

recorded by police but actually it was recorded by the

Executive Magistrate. It is not in dispute that the Police

statement u/s 161 Cr.P.C., was recorded on 23rd June,

2021. Therefore, apparently it appears that a mistake

has been committed by accused to confront the actual

statement u/s 161 Cr.P.C, which was part of charge

sheet.

6. The ambit of section 311 CrPC which is relevant for just

adjudication of the instant case is reproduced

hereunder:

"311. Power to summon material witnerss, 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 reexamine any such person if his evidence appears to it to be essential to the just decision of the case."

7. The Supreme Court in V.N. Patil Versus K. Niranjan

(2021) 3 SCC 661 while deciding the objection of

section 311 CrPC observed that there should not be any

failure on account of mistake of either party in bringing

valuable evidence on record or leaving ambiguity in the

statements of witnesses examined from either side. The

determinative factor for exercise of power under Section

311 CrPC is whether it is essential to the just decision of

the case and it can be therefore allowed at any stage of

the trial. Paras 14, 15, 16 & 17 of the said decision are

relevant and quoted below:

14. The object underlying Section 311 CrPC 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 significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code." It is however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion".

15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar v. State of UP. (2011) 8 SCC 136 (Para 17) :

"17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judiciously for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt. Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason".

16. This principle has been further reiterated in Mannan Shaikh v. State of W.B. (2014) 13 SCC 59 and thereafter in Ratanlal v. Prahlad Jat

(2017) 9 SCC 340 and Swapan Kumar Chatterjee v. CBI (2019) 14 SCC 328 . The relevant paragraphs of Swapan Kumar Chatterjee are as under :

"10. The first part of this Section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (I) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re- examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine, or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

11. It is well settled that the power conferred under Section 311 should be invoked by the Court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideratio9n the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."

17. The aim of every court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a Court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong

and valid reasons and with caution and circumspection to meet the ends of justice.

8. Applying the aforesaid principles in this case, it would

show that the statement recorded immediately after the

merg and the statement recorded u/s 161 CrPC would

have much significance. It is obvious that after the

witness is examined and the trial is concluded, the

judgment would be rendered on the basis of evidence

placed on record. The 161 statement on record if finds

support to an accused, he has all the right to confront it.

At the same time, the prosecution would be wrong in

exhibiting the merg statement under the caption of

Police statement. It is always to be kept in view that the