Rajesh vs The State Of Madhya Pradesh
2021 Latest Caselaw 7809 MP

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          The High Court Of Madhya Pradesh

                         MCRC No. 1551 of 2020
                     (RAJESH Vs THE STATE OF MADHYA PRADESH)




Indore, Dated : 25-11-2021
      Shri Hitesh Sharma, learned counsel for the petitioner .
      Smt. Bharti Lakkad learned PL for the respondent/State.

Petitioner has filed present petition under section 482 of Cr.P.C being aggrieved by the order dated 02/08/2019 passed by learned Additional Sessions Judge, Indore in Sessions Trial no. 15/2016, whereby the application filed by the petitioner/accused under section 311 of Cr.P.C for re-cross-examination of the prosecution witnesses, has been dismissed.

The facts giving rise to present petition are that the petitioner is facing trial for the offence punishable under section 304-B of IPC. After filing of the charge-sheet, the charges were framed and the petitioner and other co-accused persons were put to trial. The prosecution has examined some witnesses and the case is pending for examination of the remaining witnesses.

The petitioner has filed an application under section 311 of Cr.P.C before the trial Court for summoning of all the earlier prosecution witnesses for further effective cross-examination. Due the poor financial condition, the Court has provided him counsel from the legal aid committee. After enlarging on bail, when he consulted with his counsel, he came to know that so many important questions regarding economic condition of the petitioner were not put before the prosecution witnesses during cross- examination. Examination of the witnesses is required to be just and proper for adjudication of the matter.

After hearing both the parties, the Court below dismissed the application vide order dated 02/08/2019, therefore, the petitioner has challenged the said order before this Court by filing present petition under section 482 of Cr.P.C.

Learned counsel for the petitioner has contended that the order of the trial Court is contrary to the law and facts on record. He is poor person,

therefore, he was provided a counsel to defend his case from the Legal Aid Committee, but due to overlooking, his counsel has not properly cross- examined the prosecution witnesses. The questions regarding financial condition of the complainant and the applicant are important in the case of dowry, because the case of the prosecution is based upon the circumstantial evidence and no direct evidence is available against the accused person, hence, further cross-examination on the above point is essential for defence of the accused.

Learned counsel further contended that Hon'ble Supreme Court in the case of Rajendra Prasad Vs. Narcotic Cell, through the office in- charge, Delhi reported in AIR 1999 SC 2292 has laid down the principle 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 trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed 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.

The very same decision Mohanlal Shamiji Soni v. Union of India, (supra) which cautioned against filling up lacuna has also laid down the ratio thus (para 27) :

"It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examined any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.' Dealing with Corresponding Section in the old Code Section 540. Hidyatullah Jias the learned Chief Justice then was) speaking for a three-judge bench of this Court had said in Jamatraj Kewalji Govani v. The State of Maharashtra, [1967] 3 SCR 415 as follows (para 14 of AIR and Cri.LJ):-

"It would appear that in our criminal jurisdiction, statutory law Confers a power in absolute terms to be exercised at any stage or

the trail to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercise the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case."

Learned counsel further relied upon the judgment delivered by this Court in the case of Khoob Singh Vs State of M.P. Reported in 2018 (3) MPJR(2) in para 17 wherein it has been held as under :

"17.3 If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.

17.4 The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case."

Learned counsel for the petitioner fairly submits that the purpose of petitioner will be served if the prayer made in this petition for further cross- examination of Deepak (PW-1) and Indirabai (PW-2) is partly allowed.

Per-contra, learned counsel for the respondent/State has opposed the prayer made by learned counsel for the petitioner and has submitted that the order passed by the trial court is just and proper and no interference is required.

From perusal of the record, it appears that evidence regarding financial condition of complainant and accused person must be substantial and during cross-examination of Deepak (PW-1) who is brother of deceased Puja and Indirabai (PW-2) who is mother of deceased Puja no relevant question in that regard has been put up in their cross-examination. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily. It is not a case of lacuna but a case of oversight the question.

The trial Court has passed the impugned order without application of mind and without assigning any appropriate reason. Therefore, the ground

of rejection of application under Section 311 of Cr.P.C. is bad in law. In view of the above, this Court is of the considered view that one last opportunity should be given to petitioner to cross-examine the material witnesses Deepak (PW-1) and Indirabai (PW-2).

Accordingly present petition under section 482 of Cr.P.C. is allowed and the impugned order dated 2.8.2019 passed by the trial court is set aside. The trial court is directed to recall the witnesses Deepak (PW-1) and Indirabai (PW-2) and afford only one opportunity to petitioner to further cross-examine the said witnesses. The petitioner is permitted to further cross-examine these witnesses, subject to deposit of Rs. 3,000/-by the applicant in High Court Legal Aid Committee Bench at Indore.

A copy of this order be sent to the concerned trial court for information and necessary compliance.

C.C. As per rules.

(ANIL VERMA) JUDGE Amol/BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2021.11.27 12:55:57 +05'30'