Lokesh Khanna vs State
2015 Latest Caselaw 8442 Del

$-4
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   DECIDED ON : 6th NOVEMBER, 2015

+     CRL.REV.P. 477/2015 & CRL.M.A.No.10908/2015

      LOKESH KHANNA                                       ..... Petitioner

                          Through :      Ms.Geeta Luthra, Sr.Advocate with
                                         Mr.Ujjwal Jain & Mr.Virendra
                                         Hooda, Advocates.


                          versus

      STATE                                               ..... Respondent

                          Through :      Mr.Amit Ahlawat, APP.


       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.Garg, J. (Oral)

1. The instant revision petition has been preferred by the

petitioner to challenge the legality and propriety of order dated 17.07.2015

of learned Addl. Sessions Judge, by which application under Section 311

Cr.P.C. to recall certain witnesses for further cross-examination was

dismissed. Status Report is on record.

2. I have heard the learned Senior Counsel for the petitioner and

the learned Addl. Public Prosecutor and have examined the record. The

petitioner is facing trial under Sections 498A/304B/302 IPC. The

prosecution has already examined all its witnesses. Statements of the

accused have been recorded under Section 313 Cr.P.C. Apparently, the

trial is its fag end and final arguments seem to be in progress.

3. The petitioner intends to recall for further cross-examination

PW-2 (Vinod Kumar), PW-3 (Dr.Pradeep Kumar), PW-6 (Dr.Asitesh

Bajwa), PW-11 (Mohd.Hanif Khan) and PW-14 (Dalip Kumar). It is

urged that some relevant questions were not put by the previous counsel to

them at the time of their cross-examination. Their examination is essential

for the just decision of the case. The petitioner is entitled to have fair

opportunity to prove his innocence. Reliance has been placed on 'Mohan

Lal Shamlal Soni vs. Union of India', 1991 AIR 1346, 'P.Sanjeeva Rao

vs. State of Andhra Pradesh', 2012 (7) SCC 56, 'Hoffman Andreas vs.

Inspector of Customs, Amritsar', 2000 (10) SCC 430 and 'Shiv Kumar

Yadav vs. State', 2015 (148) DRJ 508.

4. Perusal of the record reveals that PW-2 (Vinod Kumar),

SDM Kotwali, an official witness, who conducted inquest proceedings on

27.05.2013 appeared before the Trial Court on 17.04.2014 and was cross-

examined at length. It runs into three pages. PW-3 (Dr.Pradeep Kumar),

CMO, Jeevan Mala Hospital, who had conducted medical examination of

the victim on 25.05.2013 vide MLC (Ex.PW-3/A) was examined on

17.04.2014 and was duly cross-examined that day. PW-6 (Dr.Asitesh

Bajwa) was examined on 01.09.2014 to prove Post Mortem Report

(Ex.PW-6/A). His cross-examination was deferred at the request of the

defence counsel and he was recalled on 24.02.2015. After cross-

examining him for certain duration, again further examination was

deferred at the request of learned defence counsel as he wanted to refer

Modi's books on Medical Jurisprudence. PW-6 (Dr.Asitesh Bajwa)

reappeared on 31.03.2015 and was extensively cross-examined (running

into three pages) that day. PW-11 (ASI Mohd.Hanif Khan), appeared as a

witness on 21.01.2015 and was duly cross-examined. He was posted in

Mobile Crime Team and had arrived at the spot at about 08.30 am on

receipt of the information. PW-12 (SI Sushil Kumar) was examined on

22.01.2015. At the request of the defence counsel, his further examination

was deferred and he was recalled on 11.02.2015 for cross-examination.

He was grilled comprehensively (five pages).

5. Needless to say, all the witnesses being recalled for cross-

examination were cross-examined at length on various dates on all

relevant aspects. The petitioner did not move the Trial Court to recall any

such witness at the earliest. The instant application was moved after the

prosecution had already recorded the statements of all the prosecution

witnesses. It is informed that even statements of the accused under Section

313 Cr.P.C. have been recorded. No plausible reasons have been given by

the petitioner to recall all these witnesses at a belated stage.

6. In a recent judgment 'AG vs. Shiv Kumar Yadav and ors.',

2015X AD (S.C.) 165, decided on 10.09.2015, Supreme Court

categorically and affirmatively held that fairness of trial has to be seen not

only from the point of view of the accused, but also from the point of view

of the victim and the society. In the name of fair trial, the system cannot

be held to ransom. It further held that while advancement of justice

remains the prior object of law, it cannot be understood that recall can be

allowed for the asking or reasons related to mere convenience. It has

normally to be presumed that the counsel conducting a case is competent

particulary when he is appointed by choice of a litigant. It further held that

mere change of counsel cannot be ground to recall the witnesses. Mere

fact that the accused was in custody and that he will suffer by the delay

could be no consideration for allowing recall of witnesses particularly at

the fag end of the trial.

7. In the instant case also all the witnesses have been examined

at length. Merely because the previous counsel allegedly did not put

certain questions, all these witnesses examined long back cannot be

recalled. It will be an unending affair. The witnesses being recalled are

official witnesses who have no ulterior reasons to suppress or conceal any

material fact. This Court cannot comment upon the questions which the

previous counsel allegedly failed to put in his wisdom to these witnesses

in the cross-examination at the relevant time. This Court in 'Raminder

Singh vs. State', Crl.M.C.8479/2006 in its order dated 20.02.2008 (finding

reflection in 'AG vs. Shiv Kumar Yadav‟ (supra), held as under :

XXXX XXXX XXXX "In the first place, it requires to be noticed that scope of Section 311 Code of Criminal Procedure does not permit a court to go into the aspect whether material portions of the evidence on record should have been put to the witness in cross-examination to elicit their contradictions. If the court is required to perform such an exercise every time an application is filed Under Section 311 then not only would it be pre-judging what according to it are „material portions‟ of the evidence but it would end up reappraising the entire cross-examination conducted by a counsel to find out if the counsel had done a competent job or not. This certainly is not within the scope of the power of the trial court under Section 311 Code of Criminal Procedure. No judgment has been pointed out by the learned Counsel for the Petitioner in support of such a contention. Even on a

practical level it would well nigh be impossible to ensure expeditious completion of trials if trial courts were expected to perform such an exercise at the conclusion of the examination of prosecution witnesses every time."

8. The revision petition lacks merit and is dismissed. Pending

application also stands disposed of.

9. Trial Court record be sent back forthwith with the copy of the

order.

(S.P.GARG) JUDGE

NOVEMBER 06, 2015 / tr