Jeetu Saini vs State Nct Of Delhi
2014 Latest Caselaw 1184 Del

$~8
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.M.C. 567/2013

      JEETU SAINI                                 ..... Petitioner
                           Through:    Mr.Bankim K. Kulshreshtha,
                                       Mr.Harish Nautiyal, Advocates

                           versus

      STATE NCT OF DELHI                            ..... Respondent
                    Through:           Mr. Sunil Sharma, Additional
                                       Public Prosecutor for State with
                                       Inspector R.C.Dahiya, Sub-
                                       Inspector Jagan Nath, Police
                                       Station Vikas Puri, Delhi.
      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                          ORDER

% 05.03.2013

Crl.M.A. No.2861/2013 (Exemption) & Crl.M.A. No.2860/2013 (for taking on record the depositions of PW-4, 7, 10, 14 and 20)

Allowed, subject to all just exceptions.

Crl. M.C. No. 567/2013 & Crl. M.A. No. 1854/20103 (Stay)

Petitioner is facing trial in a murder case in FIR No. 222/2008, under Sections 302 of IPC registered at Police Station Vikaspuri, Delhi, and when substantial prosecution evidence was recorded, he had changed his lawyer who had filed application under Sections 311 of Cr.P.C. read with Section 165 of the Evidence Act to recall PW-4 Const. Subhash; PW-14 Bhanu @ Jaswant; PW-10 Dr. Komal Singh; PW-20 Inspector

Crl. M.C. No. 567/2013 Page 1 Ghanshyam Meena; and PW-7 HC Satpal to further cross-examine them.

Trial Court vide impugned order of 22nd December, 2012 has dismissed petitioner's application for recall of aforesaid witnesses on the reasoning which reads as under:-

"Even though at times the witnesses may be recalled in the event there is a change of counsel as per the enunciation of the Hon'ble Supreme Court in this regard but nevertheless the accused cannot be permitted to re-establish his case afresh once he had been afforded an opportunity to cross-examine the witness and he had availed the said opportunity. Keeping in view the aforesaid fact, the accused cannot be permitted fishing expedition nor can he be allowed to fill in the lacuna at this juncture when the case is coming to near conclusion and by permitting the aforesaid witnesses tobe cross-examined, not only would the matter be delayed but also it would amount to gross misuse of the judicial process."

At the hearing, petitioner's counsel had urged that purported eye-witness PW-4 and PW-7 have to be further cross-examined on the vital aspect of recovery of movie ticket from the personal search of petitioner - accused as it is the case of petitioner that after watching the movie at PVR theatre, which was nearby the place of incident, petitioner had intervened to save the deceased from the real culprits but petitioner has been falsely framed in this case. Regarding further cross-examination of brother of the deceased PW-14, it is pointed out by petitioner's counsel that co- accused Shivani was infact arrested from her house whereas this

Crl. M.C. No. 567/2013 Page 2 witness has falsely deposed that she was arrested from the spot and so, this witness has to be cross-examined on this vital aspect. As regards the doctor (PW-10), who had conducted the post mortem report of deceased, the recovered weapon of offence has to be put to him to show that the injury sustained by the deceased could not be caused by the recovered weapon. Regarding Investigating Officer (PW-21), petitioner's counsel asserts that he has to be further cross-examined regarding the fact as to who has called police at the spot and as to why finger prints of petitioner were not taken, as this aspect goes to the root of the matter and would prove the innocence of petitioner. According to petitioner's counsel, cross-examination of aforesaid witnesses on the aspects as pointed out above, is essential for just decision of this case and so impugned order deserves to be set aside and petitioner's application under Sections 311 of Cr.P.C. ought to be allowed.

Learned Additional Public Prosecutor for respondent - State staunchly opposes this application and submits that recalling these witnesses at the stage of recording of statement of petitioner under Sections 313 of Cr.P.C. would amount to re-trial and petitioner cannot be allowed to fill in the lacunae left by previous counsel and if this is to be allowed this time, then the petitioner would again change the counsel who would file similar type of application and trial of this case would never come to an end.

In a murder case, the ambit of Section 311 of Cr.P.C. has been dwelt upon by the Apex Court in Shailendra Kumar v. State of Bihar, (2002) 1 SCC 655 and the pertinent observations made therein are as under:-

Crl. M.C. No. 567/2013 Page 3 "Bare reading of the aforesaid section reveals that it is of very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses, the court's function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This court in Rajendra Prasad v. Narcotic Cell [(1999) 6 SCC 110: 1`99 SCC (Cri) 1062] observed:

After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."

Having considered the submissions advanced and upon perusal of impugned order and the copy of depositions of material witnesses placed on record, I find that petitioner and his co-accused are in custody and so petitioner does not gain anything by prolonging the trial of this case. It is a question of life and death of petitioner and so petitioner's application ought to have been considered by trial court with greater sensitivity. The aspects on which the aforesaid witnesses are further sought to be cross- examined appears to be essential for the just decision of this case. Resultantly, this petition is allowed and the impugned order is set aside and petitioner's application under Sections 311 of Cr.P.C. is allowed with a direction to trial court to fix two consecutive dates for cross-examining the aforesaid witnesses within a period of four weeks or so from the date to be fixed by trial court.

This petition is accordingly allowed with direction to respondent to produce the aforesaid witnesses on two consecutive

Crl. M.C. No. 567/2013 Page 4 dates of hearing so that further cross-examination of recalled witnesses is completed and the trial of this case does not get delayed beyond a period of three months from the date now to be fixed by trial court. Let accused be produced before trial court on 12th March, 2013.

This petition and the pending applications are disposed of accordingly.

                                                  (SUNIL GAUR)
                                                      Judge
      MARCH 05, 2013
      pkb




Crl. M.C. No. 567/2013                                             Page 5