Bikram Khalko vs The State Of Assam
2022 Latest Caselaw 2326 Gua

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GAHC010134992022




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : Crl.Rev.P./349/2022

             BIKRAM KHALKO
             S/O BARU KHALKO, R/O MADHYAM DAKHINGAON, P.S.-RUNIKHATA,
             DIST-CHIRANG, BTR, ASSAM-783390



             VERSUS

             THE STATE OF ASSAM
             REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM



Advocate for the Petitioner   : MR F KHAN

Advocate for the Respondent : PP, ASSAM




                                    BEFORE
                       HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                             ORDER

Date : 18-07-2022

Heard Mr. F. Khan, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent.

2. Legality, propriety and correctness of the order dated 23.05.2022 and also the order dated 01.06.2022, passed by the learned Sessions Judge, Chirang, Kajalgaon, in Sessions Case No. 08/2021, Page No.# 2/5

are challenged in this revision petition under Section 397 read with Section 401 and 482 of the Code of Criminal Procedure.

3. It is to be noted here that vide impugned order, dated 01.06.2022, the learned Court below has closed the evidence of P.W.-8, who happens to be a Doctor and conducted autopsy on the dead body of the deceased, on account of non-appearance of counsel for the petitioner at 11.15 a.m. for cross- examination of the P.W.8 and vide impugned order, dated 01.06.2022, the learned Court below has rejected the petition No. 377, dated 01.06.2022, filed under section 311 Cr.P.C. for recalling P.W.8 and for allowing to cross-examine him.

4. Mr. F. Khan, learned counsel for the petitioner, submits that on 23.05.2022, the learned counsel for the petitioner was attending another matter in the Court of Additional Sessions Judge, North Salmara, Abhayapuri, in filing one criminal revision petition and therefore, he could not appear before the Court at the relevant time. However, he attended the Court immediately after passing the impugned order. Thereafter, on 01.06.2022, the petitioner had preferred one petition under Section 311 Cr.P.C. for recalling the prosecution witness No. 8, for his cross-examination. However, the same was dismissed on the ground that on 21.05.2022, the learned counsel for the petitioner remained absent till 11.15 a.m. The learned counsel for the petitioner further submits that the though the learned counsel for the petitioner could not appear before the Court at the relevant time, yet it was not ground for rejection of the petition under Section 311 and that the petitioner has been facing criminal trial under section 447/323/302/34 IPC and that in a trial under section 302 IPC, the Doctor, who had conducted autopsy on the dead body of a deceased person, is a vital witness and if the petitioner is denied opportunity to cross-examine such a vital witness, then grave prejudice will be caused to him and his right to fair trial will be impaired. Therefore, it is contended to allow the petition.

5. On the other hand, Mr. P. Borthakur, learned Additional Public Prosecutor, submits the learned Court below has not committed any illegality or impropriety in passing the impugned orders. However, Mr. Borthakur submits that if the petitioner is not given a chance to cross-examine the witness, he will raise such a plea in appeal also in the event of conviction, and therefore, the state has no objection in the event of setting aside the impugned order.

6. Having heard the submissions of learned counsel of bothsides, I have carefully gone through the Page No.# 3/5

petition and the documents placed on record. Also, I have gone through the impugned orders carefully. It is to be noted here that while dealing with the scope of section 311 Cr.P.C. Hon'ble Supreme Court in Mohanlal Shamji Soni v. Union of India & Anr., AIR 1991 SC 1346, held that it is a cardinal rule of the law of evidence, that the best available evidence must be brought before the court to prove a fact, or a point in issue. However, the court is under an obligation to discharge its statutory functions, whether discretionary or obligatory, according to law and hence ensures that justice is done. The court has a duty to determine the truth, and to render a just decision. The same is also the object of Section 311 Cr.P.C., wherein the court may exercise its discretionary authority at any stage of the enquiry, trial or other proceedings, to summon any person as a witness though not yet summoned as a witness, or to recall or re- examine any person, though not yet summoned as a witness, who are expected to be able to throw light upon the matter in dispute, because if the judgments happen to be rendered on an inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

7. In Rajendra Prasad v. Narcotic Cell through its Officer-in- Charge, Delhi, AIR 1999 SC 2292, Hon'ble Supreme Court considered a similar issue and held as under:-

"Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting, errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. 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." (Emphasis added)

8. Similarly, in P. Sanjeeva Rao v. State of A.P., AIR 2012 SC 2242, Hon'ble Supreme Court again examined the scope of the provisions of Section 311 Cr.P.C. and held as under:-

"Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite:

`In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.' xxx xxx xxx xxx We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old..... we are of the opinion that on a parity of Page No.# 4/5

reasoning and looking to the consequences of denial of opportunity to cross- examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself."

9. Here in this case, it is apparent from the impugned orders that the learned court below has dismissed the petition under section 311 Cr.P.C. filed by the petitioner only on the ground that as the counsel for the petitioner had not present at the court till 11.50 am, and as such cross-examination deemed to have been declined, and as the said witness is a Doctor, who conducted autopsy over the dead body of the deceased, it is not possible for the court to hold him throughout the day.

10. It is not in dispute that the petitioner has been standing trial under section 447/323/302/34 IPC, and that in a trial under section 302 IPC, Doctor is a vital witness and if the petitioner is denied opportunity to cross-examine such a vital witness, then the petitioner will suffer serious prejudice and his right to fair trial will be impaired. The learned counsel for the petitioner had rightly pointed this out. Thus, the grounds so assigned by the learned court below in rejecting the petition, if examined in the light of the proposition of law, so laid down in the cases discussed herein above, this court afraid that the same able to withstand the test of legality, propriety and correctness. It is well settled that right to fair trial is a fundamental right, as enshrined in Article 21 of the Constitution of India. Cross-examination is also a part of it. And as such, denial of opportunity to cross-examine the witnesses would amounts to denial of a fair trial.

11. Thus, in view of the submission of learned Advocates of both sides, and also in view of the facts and circumstances discussed herein above, and also in the interest of justice, this criminal revision petition stands allowed. The impugned order dated 23.05.2022, and the order dated 01.06.2022, passed by the learned Sessions Judge, Chirang, Kajalgaon, in Sessions Case No. 08/2021, stands set aside and quashed as the same failed withstand the test of legality, propriety and correctness.

12. It is provided that the learned Sessions Judge, Chirang shall recall P.W.-8 and affords opportunity to the petitioner to cross-examine him.

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In terms of above, this revision petition stands disposed of.

JUDGE

Comparing Assistant