Salim Khan vs Shaista & Ors.
2011 Latest Caselaw 1066 Del

               * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of Reserve: 14th February, 2011
                                                   Date of Order: 22nd February, 2011

+ CRL. REV. P. 421 of 2011
%                                                                           22.02.2011

SALIM KHAN                                                            ..... Appellant
                                    Through: Mr. R.K. Jain and Mr. Mridul Jain,
                                    Advocates

                           versus

SHAISTA & ORS                                                      ..... Respondent
                                    Through Mr. O.P. Saxena, Addl. PP with SI
                                    Rakesh Kumar, P.S. Bhajanpura
                                    Mr. Firoz Ahmed, Advocates for R-1 to R-4


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

1. By this revision petitioner has assailed order dated 6 th May, 2010

passed by learned ASJ dismissing an application under Section 311 Cr. P.C.

The petitioner is complainant/ brother of deceased in a case under Section

302/120-B/34 IPC. Respondent No. 1 to 4 are the accused persons who are

facing trial. The petitioner made an application that additional witness namely

Shama and Suhail, who are the children of the deceased and were present at

the time of incident should be called and examined by the Court as witnesses.

Shama is 13 years old and Suhail is 9 years of age. It is averred that they

were sleeping in the same premises besides accused Shaista and deceased

Tasleem on the night of commission of offence. Accused Shaista is non-else

but mother of the two children. Accused Shaista scared and warned them not

to speak anything before the police, otherwise, they would be killed like their

father and for this reason they did not speak before the police but they were

the natural witnesses.

2. The trial court observed that Shama had already been summoned and

examined in this case. She was more matured than the other child witness

namely Suhail and since she has already deposed and claimed herself to be

the eye-witness, there was no necessary that witness Suhail be also

examined as witness.

3. The date of incident was 2nd August, 2008. Statement of Shama was

recorded on 22nd August, 2008. Statement of Suhail was not recorded and

the application under Section 311 Cr. P.C. was made before the trial court on

13th May, 2009 only when other two prosecution witnesses turned hostile.

The trial court therefore considered that it was not appropriate to record a

child witness so late, more so, when the application itself was made after

turning of prosecution witnesses hostile. The trial court also observed that it

is the quality of evidence and not the quantity which matters and since Shama

has been examined claiming herself to be an eye witness, Suhail was not

necessary to be examined for the just decision of the case.

4. I consider that the trial court righty dismissed the application. Shama

was examined as an eye witness by the police during investigation and was

cited as a witness. Suhail did not make a statement to the police despite

enquiry and he was therefore not examined or cited as a witness by the

police.

5. A child witness is easy to tutor. Summoning a child witness after

turning hostile of other prosecution witnesses do give an indication that

prosecution was making effort to fill up lacuna.

I find no force in this petition. The petition is hereby dismissed in-limini.

FEBRUARY 22,           2011                      SHIV NARAYAN DHINGRA, J.
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