Madhya Pradesh High Court
Ramsakha Kushwaha @ Bhura vs The State Of Madhya Pradesh on 12 July, 2021
Author: Sanjay Dwivedi
1 CRR-785-2021
The High Court Of Madhya Pradesh
CRR-785-2021
(RAMSAKHA KUSHWAHA @ BHURA Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 12-07-2021
Heard through Video Conferencing.
Shri Rajesh Kumar Sen, Advocate for the revisionist.
Shri Dilip Parihar, Public Prosecutor for the respondent/State.
Heard.
This revision has been filed under Section 397 r/w 401 of CrPC
challenging the order dated 05.03.2021 whereby an application of the
applicant filed under Section 311 of CrPC for recalling the witness namely
Arjun Kol has been rejected.
The learned counsel for the applicant submits that witness Arjun Kol
(PW-3) had given a statement during the trial which was being conducted
under the same crime number for another co-accused Dabbu alias Manoj
Kushwaha in which a final judgment has been passed but as the present
applicant was absconding during trial, therefore, after his arrest trial was again
conducted in which witness Arjun Kol (PW-3) has given statement, which is
stated as contrary to the statement given by him in first round while the trial
was being conducted against co-accused Dabbu alias Manoj Kushwaha. He
further submits that the applicant has moved an application under Section 311
of CrPC for calling witness Arjun Kol (PW-3) so as to contradict him with
his earlier statement. He also submits that looking to the provisions of Section
145 of the Evidence Act, the permission had to be granted by the Court
below, however, the same was turned down by rejecting the application.
Hence, this revision has been filed by the applicant.
On perusing the order passed by the Court below and considering the
provisions of Section 145 of Evidence Act, I do not find any illegality in the
order passed by the Court below as the statement of witness Arjun Kol (PW-
3) was very much available on record as had been given by him in the same
Signature Not Verified
SAN
trial and that can be compared with by the trial Court for which there was no
Digitally signed by SUDESH KUMAR
SHUKLA
Date: 2021.07.15 17:26:10 IST
2 CRR-785-2021
necessity to recall him. It is further observed by the trial Court that in the
application, there is no mention as to what contrary statement has been given
by witness Arjun Kol (PW-3) with that of his earlier statement given during
the trial conducted for co-accused Dabbu alias Manoj Kushwaha. A copy of
the statement of witness Arjun Kol (PW-3) has also been filed, which shows
that cross-examination has also been done by the counsel for the applicant,
but he had not compared the statement earlier given by the witness and it was
an apparent mistake of the counsel as he has not asked the relevant question
to the witness. It is a trite law that the benefit of the provisions of Section 145
of the Evidence Act cannot be taken for filling-up lacunae and therefore the
order passed by the Court below is infallible and more precisely it cannot be
said to be illegal in any manner. Nevertheless, the credibility of a witness can
be tested by the trial Court on the basis of his two different statements which
are available on record. Even otherwise, a witness can be contradicted with
his earlier statement i.e. statement recorded by the police under Section 161,
162 and 164 of CrPC. Here in this case, the right of cross-examination was
availed by the counsel for the applicant but he failed to put a relevant question
therefore the application under Section 311 CrPC for the purpose of calling
the witness again cannot be entertained and in the considered opinion of this
Court it has rightly been rejected by the Court below.
In the case of Annu @ Anil & Ors. v. State of M.P. & Anr. 2018 3
MPLJ (Cri) 402 the High Court has very categorically observed "the power
under Section 311 CrPC must be invoked by the Court only in order to meet
the ends of justice for strong and valid reasons and the same must be
exercised with care, caution and circumspection. The Court should bear in
mind that fair trial entails the interest of the accused, the victim and the society
and, therefore, the grant of fair and proper opportunities to the persons
concerned, must be ensured being a constitutional goal, as well as a human
right.".
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SAN
In the case at hand, there is no valid reason assigned by the applicant
Digitally signed by SUDESH KUMAR
SHUKLA
Date: 2021.07.15 17:26:10 IST
3 CRR-785-2021
on the basis of which this Court while exercising power provided under
Section 311 CrPC, can direct for recalling the witness Arjun Kol (PW-3).
Accordingly, I do not find any merit in the submissions made by the learned
counsel for the applicant.
The revision being sans substance, is hereby dismissed.
(SANJAY DWIVEDI)
JUDGE
Sudesh
Signature Not Verified
SAN
Digitally signed by SUDESH KUMAR
SHUKLA
Date: 2021.07.15 17:26:10 IST
