Mohit Raikwar vs The State Of Madhya Pradesh
2021 Latest Caselaw 3847 MP

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  HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
   (SINGLE BENCH: HON'BLE Mr. JUSTICE VIVEK RUSIA)
                       M.Cr.C. No. 36367/2021
                (Mohit Raikwar V/s. The state of M.P.)
Date: 02.08.2021:
      Shri Gulab Sharma, learned counsel for the petitioner.
       Shri   Ramkrishna   Shastri,   learned   Panel   Lawyer    for   the
respondent/State.
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Petitioner/accused has filed present petition under 482 of the Code of Criminal Procedure, 1973 against the order dated 11.01.2021 passed in Sessions Trial No.462/2019 by 28th Additional Sessions Judge, Indore, whereby an application filed by the accused/petitioner under Section 311 of Cr.P.C., for recalling of Smt. Rajni Senger (PW-1) who was earlier examined, was rejected.

(2). As per prosecution story, Smt. Rajni Senger (PW-1) wife of Late Sanjay Senger (deceased) has lodged an FIR reporting that on the date of incident, she was in the house alongwith her husband situated Sabneesh Bag, Indore. Near about 08:00 - 08:15 in the evening accused persons Aayaya, Santosh, Ankit, Lakhan Dhariya, Dabbu, Bhaiyu and Mohit came in the car and abused and threatened her husband, thereafter, they left the place. She alongwith his mother-in-law went to the police station and lodged the report. After sometime, on hearing the voice from door side, she opened the door and saw accused persons standing with knife in their hands. They forcefully entered inside the house complainant and assaulted her husband. She immediately called her brother-in-law (Devar) and took the deceased to M.Y. Hospital where he was operated but succumbed to injuries. On the basis of aforesaid complainant, FIR has been registered against all the accused persons. The statement of Rajni Senger (PW-1) was recorded under Section 164 of Cr.P.C. before the Magistrate. After completion of investigation, police filed the charge-sheet against all the accused persons. On 12.12.2018, the learned Additional Judge has framed the charges under Section 302 read with Section 149 of I.P.C. against all the accused persons. As many as 13 witnesses have been examined by the

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prosecution upto 26.07.2019. The present petitioner has filed an application under Section 311 of Cr.P.C. seeking recall of Rajni Senger (PW-1) in the witness box for confronting CCTV footage filed alongwith charge-sheet. According to the petitioner at the time of examination as well as cross-examination of Rajni Senger (PW-1) CD was not played in the court in order to identify the present petitioner in the footage. The aforesaid application was opposed by the public prosecutor. Vide order dated 11.01.2021, learned court rejected the application under Section 311 of Cr.P.C. Hence, present petition before this Court. (3). Learned counsel for the petitioner submits that the trial court has committed error while rejecting the application filed by the petitioner without appreciating the fact that CCTV footage of the incident is part of charge sheet and being important piece of evidence, same ought to have been played at the time of examination of Rajni Senger (PW-1). According to the petitioner he is not in the CCTV Footage. If it is played by recalling Rajni Senger (PW-1), the truth would come before the court and petitioner would get justice because he has falsely been implicated in the present case. In support of his contention, he has placed reliance over the judgment passed by Apex Court in the case of Tomaso Bruno and another Vs. State of Uttar Pradesh (2015) 7 SCC 178, in which the Apex Court has observed that The trial court as well as the High Court ignored this crucial aspect of non-production of CCTV footage. It has further observed that with the amendment to the Indian Evidence Act Section 65A and 65B were introduced into Chapter V relating to documentary evidence. Section 65A further provides that contents of electronic records may be admitted as evidence if the criteria provided in Section 65A is complied with.

(4) Learned Government Advocate for the respondent opposes the aforesaid prayer by submitting that CCTV footage was provided by Shailendra @ Banti younger brother of the deceased, who has not been examined so far, therefore, petitioner is having opportunity to cross- examine him and at the time of evidence he can request to court to play

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the CCTV footage in the court. It is further submitted that in examination- in-chief Rajni Senger (PW-1) has not stated anything about the contents of CCTV footage even in her examination-in-chief.

(5). I have heard learned counsel for the parties and perused the records. (6). Rajni Senger (PW-1) has been examined on 11.01.2019, thereafter she was cross-examined on 03.10.2019, 04.10.2019, 06.12.2019 and her cross-examination runs into 97 paragraphs. The defence had ample opportunity to make request for playing the CD in the court infront of Rajni Senger (PW-1) in order to confront her. She has been asked the question in respect of CCTV footage in para 79 to 82 by the counsel appearing for this petitioner. The CCTV footage was provided alongwith charge-sheet to the accused. Even in the statement under Section 161 of Cr.P.C., Rajni Senger has not stated anything about the contents of CCTV footage.

(7). The Sailendra @ Banti, who has produced the CCTV footage is yet to be examined in trial, therefore, petitioner is still having opportunity to confront him about the contents of CCTV footage. In case of Tomaso Bruno (supra), the CCTV footage has been held to be a important piece of evidence but same was not produced by the prosecution during the trial. In the present case CCTV footage is a part of charge-sheet and prosecution is at liberty to produce the same in the trial at appropriate stage. Even if same has not been led or produced by the prosecution, then prosecution may suffer its consequences.

(8). In view of the aforesaid, this court is of the view that the trial court has not committed any error in rejecting the application filed under Section 311 of Cr.P.C. Accordingly, this petition filed under Section 482 of Cr.P.C. is hereby dismissed.

Certified copy as per Rules.

( VIVEK RUSIA ) JUDGE praveen

Digitally signed by PRAVEEN NAYAK Date: 2021.08.07 11:55:37 +05'30'