Delhi High Court
Ashok Kumar Bind vs State Nct Of Delhi on 1 September, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: September 01st, 2016
+ CRL.M.C. 1754/2016 & Crl.M.A. No.7416/2016
ASHOK KUMAR BIND ..... Petitioner
Through Mr.K. Singhal, Adv.
versus
STATE NCT OF DELHI ..... Respondent
Through Mr.Izhar Ahmad, APP for the State.
SI Jagmul Singh.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J.
1. The present petition has been filed under Section 482 of
Code of Criminal Procedure (hereinafter shall be referred as
Cr.P.C.) against order dated 30.03.2016 passed by the Trial Court
whereby the application filed by the petitioner under Section 311
Cr.P.C. was dismissed.
2. The facts in brief are that the case FIR No.99/2013 under
Section 302 IPC, Police Station New Delhi Railway Station was
registered on the basis of statement made by the complainant
Purushottam M.N. The complainant had stated that on 09.06.2013
he along with his friend Aditya Birla had come to Delhi to give
exam of DSSSB. They both came to New Delhi Railway Station.
His friend was sleeping on the bench outside S.S. Office. At about
12.30 a.m., one person came and asked Aditya Birla to get up as he
had to sleep on the bench. When complainant refused, the said
person started quarreling. In the meanwhile, that person picked up
a stone lying on the gutter and hit the same on the head of Aditya
due to which blood oozed out from the head of Aditya. When the
complainant tried to catch the assailant, the complainant was also
attacked. The complainant raised alarm. The police reached the
spot and the said person, whose name was later on revealed as
Ashok Bind, was apprehended. Injured was taken to hospital in
PCR vehicle. During treatment, Aditya expired in the hospital. On
the basis of statement of the complainant and MLC of the
deceased, the instant FIR was registered.
3. The petitioner/accused was arrested and after completion of
investigation, charge sheet was filed in the Court. The prosecution
evidence commenced. During the pendency of the trial, an
application under Section 311 Cr.P.C. was moved by the accused
for recalling witnesses PW1, PW2, PW5 to PW8 and PW11. The
Trial Court after going through the material available on record,
dismissed the said application vide impugned order dated
30.03.2016. Feeling aggrieved by the dismissal of the said
application, the present petition has been preferred by the
petitioner/accused.
4. Arguments advanced by the counsel for the petitioner as
well as Additional Public Prosecutor for the State were heard.
5. Argument advanced by the counsel for the petitioner is that
the witnesses which are sought to be cross-examined are material
and their cross-examination is essential. Except the complainant
(PW1), no other witness was cross-examined. It is further argued
that the cross-examination of PW1 was very poor and relevant
questions were not asked from the said witness. Further cross-
examination of PW1 is necessary for proper cross-examination.
Witnesses are yet to be confronted with the statement made by
other witnesses and the recovery.
6. In support of the above contentions, judgments in the case of
Natasha Singh v. Central Bureau of Investigation (State) (2013)
5 SCC 741, Hoffman Andreas v. Inspector of Customs, Amritsar
(2000) 10 SCC 430, Manoj Kumar & Ors. v. The State (NCT of
Delhi) (Crl.A. 638/2009 decided by this Court on 27.03.2012),
Iddar and others v. Aabida and another (2007) 11 SCC 211, U.T.
of Dadra & Nagar Haveli and another v. Fatehsinh Mohansinh
Chauhan (2006) 7 SCC 529, Mohanlal Shamji Soni v. Union of
India and another 1991 Supp (1) SCC 271 and Rajaram Prasad
Yadav v. State of Bihar and another (2013) 14 SCC 461 to press
the contention that the Court can exercise the power of recalling
the witness at any stage and the Court has to see whether there was
effective cross-examination of a witness or not.
7. Perusal of record shows that the complainant (PW1) was
cross-examined at length by the counsel for the accused on
04.04.2014. The ground taken by the petitioner that the earlier
counsel did not effectively cross-examine the complainant, cannot
be a ground to recall the witness after availing the opportunity of
cross-examination. In the considered view of this Court, when a
witness has been cross-examined to the satisfaction of the defence,
he cannot be recalled again and again on the ground that new
counsel has been engaged and he has been advised to cross-
examine the already cross-examined witness. Even otherwise, in
the case Nisar Khan @ Guddu versus State of Uttaranchal 2006 (9)
SCC 386, it has been held that no public witness can be recalled after
a lapse of one year that too after the witnesses were examined,
cross-examined and discharged. Admittedly, in the present case
also, the complainant (PW1) was examined, cross-examined and
discharged.
8. So far the other witnesses i.e. PW2, PW5 to PW8 and PW11
which the petitioner sought to recall for the purpose of cross-
examination are concerned, their testimony is formal in nature.
These witnesses are either the police officials or the railway
booking supervisor and the opportunity to cross-examine those
witnesses was given to the accused. The said opportunity was duly
availed but, despite the same, the witnesses were not cross-
examined. After duly availing the opportunity to cross-examine,
now the petitioner cannot claim that the said witnesses be recalled
for cross-examination as he was not advised properly by the early
counsel. Apparently, the prosecution evidence has already been
closed on 16.05.2016 and even the statement of the accused under
Section 313 Cr.P.C. was recorded on 14.07.2016 but he opted not
to adduce any evidence in his defence. Thus, the judgments relied
upon by the petitioner as mentioned above are of no assistance to
him.
9. In view of the above mentioned facts and circumstances, this
Court does not find it proper to recall the witnesses PW1, PW2,
PW5 to PW8 and PW11. Consequently, the present petition is
dismissed.
10. Application Crl.M.A. No.7416/2016 is also disposed of.
(P.S.TEJI)
JUDGE
SEPTEMBER 01, 2016
dd
