Madhya Pradesh High Court
Apsingh vs The State Of Madhya Pradesh on 2 August, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 2nd OF AUGUST, 2024
CRIMINAL REVISION No. 3777 of 2024
APSINGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
........................................................................................................................................................................................................................................................................
Appearance:
Shri Himanshu Thakur, learned counsel for the petitioners.
Shri Anendra Singh Parihar, learned Panel Lawyer for the
respondent/State appearing on behalf of Advocate General.
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ORDER
1. With consent heard finally.
2. By this revision preferred under Section 397/401 of the Code of
Criminal Procedure the petitioners have challenged the order dated
01.03.2024 passed by the IInd Additional Sessions Judge, Sardarpur,
District Dhar in Sessions Trial No.16/2022 whereby it has rejected an
application under Section 311 of the Cr.P.C filed by them for re-
recording of their own statements before the Court.
3. The facts in brief are that an FIR was lodged by the complainant
Aapsingh, petitioner No.1, to the effect that on 04.11.2021 at about 9.30
p.m. he was riding his motorcycle in which his wife was also sitting.
They were going towards Dudikanch. On the way they saw his brother-
in-law Dhumsingh @ Dhuma riding another motorcycle bearing
registration No.MP/11/MC/6928. Dhumsingh stopped his vehicle and
on seeing him, he also stopped his motorcycle. Thereafter the accused
fired gunshot on the back of Dhumsingh due to which he received
injury and expired on the spot.
4. On lodging of the FIR, investigation was commenced by the
police during course of which statements of witnesses were recorded
and the accused were arrested. After completion of the investigation
charge sheet was filed against the accused and the trial is pending
before the trial Court.
5. During course of proceedings before the trial Court, statements of
the petitioners namely Aapsingh and Budibai were recorded. Thereafter
an application under Section 311 of the Cr.P.C. was filed by them on
20.02.2024 for permitting them to re-record their evidence before the
Court submitting that earlier they had been pressurized for lodging a
complaint against the accused due to which they had lodged the same
and under that threat itself had recorded their statements before the
Court. The statements given by them before the Court are a result of the
inducement upon them. However now they wish to record their
statements before the Court to give the actual narration of the incident
as it took place hence they deserve to be granted opportunity for the
same.
6. The application has been rejected by the trial Court on the ground
that the report had been lodged by petitioner No.1 himself on the basis
of which entire investigation was conducted and after conclusion of the
same charge-sheet has been filed and their statements have already been
recorded before the Court. Their statements are in consonance with
their earlier version and it does not appear that any report has been
made by the petitioners to the Police as regards them having been
forced to record their statements. The application is also belated having
been filed after a period of more than one year from the date of their
statements.
7. Learned counsel for the petitioners has placed reliance upon the
decision of the High Court of Punjab and Haryana at Chandigarh in
CRM-M-42890-2022 (O & M) Surjit Singh V/s. State of Punjab &
Ors. decided on 26.05.2023 to submit that in view of the facts stated by
the petitioners in their application the same ought to have been allowed.
The learned counsel for the respondent has supported the impugned
order submitting that there is no infirmity in the same.
8. Heard the learned counsel for the parties and perused the record.
9. In Surjit Singh (Supra) it has been laid down as under :-
"11 ....The touchstone for exercise of powers under Section
311 of the Code, is the satisfaction of the Court that the
evidence of any person, which comes to its notice, is
essential for the just decision of the case. This power, under
Section 311 of the Code, can be exercised by the court at
any stage of any inquiry, trial or other proceedings under
the Code, to summon any person as witness, examine any
person in attendance, though not summoned as a witness or
recall or re-examine any person already examined. The
intention of the Legislature is to empower and enable the
court to come to a correct finding and for that reason, the
court would be fully justified in permitting production of
evidence, whether documentary or oral, where the court
feels that the same is necessary for the just decision of the
case. No fetters can be put in exercise of these powers of
the court. The cause of justice is paramount and no
impediment has, therefore, been intentionally put on the
court by the Legislature to exercise the Furthermore, in
Zahira Habibulla H. Sheikh and anr. v. State of Gujarat and
ors 2004 (2) RCR (Crl.) 836, the Supreme Court described
the scope of Section 311 of the Code as under:-
"Object of the Section is to enable the court to
arrive at the truth irrespective of the fact that
the prosecution or the defence has failed to
produce some evidence which is necessary for
a just and proper disposal of the case. The
power is exercised and the evidence is
examined neither to help the prosecution nor
the defence, if the court feels that there is
necessity to act in terms of Section 311 but
only to subserve the cause of justice and public
interest. It is done with an object of getting the
evidence in aid of a just decision and to uphold
the truth."
12. An argument has been by Mr. R.S. Cheema, Senior
Counsel appearing on behalf of the petitioners, that there
was no threat or coercion at the time the statement was
given in the Court and since no case was made out, the
prosecutrix and her parents rightly resiled from their
statements given under Section 164 of the Code and they
did not support the prosecution. It is argued that in case the
application under section 311 of the Code is allowed, it
would encourage persons to back out from statements
recorded and make a mockery of the trial. This argument is
without any merit. If a compromise was entered into as set
up by the complainant, it can be said that it was an
allurement to have the criminal prosecution dropped against
the accused. This can be deduced from the reading of the
compromise which has been placed on the record, where it
is stated that both parties would make an effort to get
Ashish Kumar released from the custody. This compromise
was effected by the parents of Ashish Kumar and the
prosecutrix. Without going into the question whether the
compromise was in violation of the law or not, it would not
be out of place to mention that parents in our Indian social
structure would make all endeavor to restore the reputation
of their daughters in society by arranging her marriage with
the same person accused of such offence. In fact, if the
terms of the compromise had been adhered to, the
petitioners would have benefitted as well, since they were to
be released from custody and the prosecutrix and family
members would not have instituted the instant application
seeking reexamination.
13. In para 41 of judgment rendered in Zahira Habibulla
H Sheikh's case (supra), it has been held:
"Witnesses" as Benthem said: are the eyes and
ears of justice. Hence, the importance and
primacy of the quality of trial process. If the
witness himself is incapacitated from acting as
eyes and ears of justice, the trial gets putrefied
and paralysed, and it no longer can constitute a
fair trial. The incapacitation may be due to
several factors like the witness being not in a
position for reasons beyond control to speak the
truth in the Court or due to negligence or
ignorance or some corrupt collusion. Time has
become ripe to act on account of numerous
experiences faced by Courts on account of
frequent turning of witnesses as hostile, either
due to threats, coercion, lures and monetary
considerations at the instance of those in power,
their henchmen and hirelings, political clouts
and patronage and innumerable other corrupt
practices ingenuously adopted to smoother and
stifle truth and realities coming out to surface
rendering truth and justice, to become ultimate
casualties. Broader public and societal interests
require that the victims of the crime who are
not ordinarily parties to prosecution and the
interests of State represented by their
prosecuting agencies do not suffer even in slow
process but irreversibly and irretrievably, which
if allowed would undermine and destroy public
confidence in the administration of justice,
which may ultimately pave way for anarchy,
oppression and injustice resulting in complete
breakdown and collapse of the edifice of rule of
law, enshrined and jealously guarded and
protected by the Constitution. There comes the
need for protecting the witness. Time has come
when serious and undiluted thoughts are to be
bestowed for protecting witnesses so that
ultimate truth is presented before the Court and
justice triumphs and that the trial is not reduced
to mockery. The State has a definite role to play
in protecting the witnesses, to start with at least
in sensitive cases involving those in power,
who has political patronage and could wield
muscle and money power, to avert trial getting
tainted and derailed and truth becoming a
casualty. As a protector of its citizens it has to
ensure that during a trial in Court the witness
could safely depose truth without any fear of
being haunted by those against whom he has
deposed. Some legislative enactments like the
Terrorist and Disruptive Activities (Prevention)
Act, 1987 (in short the 'TADA Act') have taken
note of the reluctance shown by witnesses to
depose against dangerous criminals- terrorists.
In a milder form also the reluctance and the
hesitation of witnesses to depose against people
with muscle power, money power or political
power has become the order of the day. If
ultimately truth is to be arrived at, the eyes and
ears of justice have to be protected so that the
interests of justice do not get incapacitated in
the sense of making the proceedings before
Courts mere mock trials as are usually seen in
movies."
It was further held that. "It is not that in every
case where the witness who had given evidence
before Court wants to change his mind and is
prepared to speak differently, that the Court
concerned should readily accede to such
request by lending its assistance. If the witness
who deposed one way earlier comes before the
appellate Court with a prayer that he is
prepared to give evidence which is materially
different from what he has given earlier at the
trial with the reasons for the earlier lapse, the
Court can consider the genuineness of the
prayer in the context as to whether the party
concerned had a fair opportunity to speak the
truth earlier and in an appropriate case accept
it. It is not that the power is to be exercised in a
routine manner, but being an exception to the
ordinary rule of disposal of appeal on the basis
of records received in exceptional cases or
extraordinary situation the Court can neither
feel powerless nor abdicate its duty to arrive at
the truth and satisfy the ends of justice. The
Court can certainly be guided by the metaphor,
separate the grain from the chaff, and in a case
which has telltale imprint of reasonableness and
genuineness in the prayer, the same has to be
accepted, at least to consider the worth,
credibility and the acceptability of the same on
merits of the material sought to be brought in."
19. An onerous duty that has been cast upon
the courts is to ensure fair trial and to arrive at
the truth. All the judgments as cited above,
clearly delineate that there is no limit on
discretion of court to recall and reexamined
witness, even if the witness who deposed one
way before the court now wants to depose and
is prepared to give evidence which is clearly
different from what had been stated earlier.
Allowing witnesses to be recalled would be in
consonance with the cardinal principle that the
truth must prevail. To ensure fair trial, the court
can consider the request and allow such witness
to be called for re-examination. The second part
of Section 311 of the Code also clearly states
that the Court 'shall' summon and examine or
recall and re-examine any such person if his
evidence appears to it to be essential for the just
decision of the case. The court has to be
satisfied that such application is not a frivolous
or vexatious application, only to delay the trial
or fill up any lacunas in the trial."
10. I am in complete agreement with the enunciation of law as made
in the aforesaid decision and see no reason to take a different view.
11. When the facts of the present case are seen in the light of the
aforesaid dictum, it is observed that the petitioners have categorically
stated in their application that they had been pressurized and forced by
the Police of Police Station Rajgarh to lodge the report against the
accused and to give their statements before the Court. They had been
detained in the Police Station for a period of two days and had been
threatened that if they would not help in prosecuting the accused a case
under Section 25B of the Arms Act would be registered against them. It
is only due to the said threat that they had given their statements before
the trial Court implicating the accused. However they were not present
at the time of the incident at the spot and were instead in their house yet
their presence and that of their motorcycle has been falsely shown by
the Police to be on the spot. Now they want to depose before the Court
and give the actual version of the incident as it took place.
12. Thus, specific stand of the petitioners is that they had earlier
deposed one way before the trial Court but now want to depose
otherwise and are prepared to give their evidence which is clearly
different from what had been stated by them earlier. They want to bring
the truth before the trial Court. Allowing them to be recalled in
evidence would be in consonance with the cardinal principle that truth
must prevail. Permitting their re-examination would be fulfilling the
intention of the legislature in enacting Section 311 of the Cr.P.C which
is to empower and enable the Court to come to a correct finding. For
that reason, it would be fully justifiable in permitting re-examination
since the same would be necessary for the just decision of the case.
13. It would be pertinent to mention that re-examination of the
petitioners would not prejudice the prosecution in any manner since it
would be having full opportunity to examine the recalled witnesses and
even otherwise the earlier statements made by them are not going to be
erased and wiped out from the record of the case. The trial Court would
decide the case on the basis of evidence already on record and the
additional evidence which would be recorded on re-examination of the
petitioners. While finally deciding the case on merits, the trial Court
would take into consideration all the evidence available on record.
14. As a result of the aforesaid discussion, the impugned order
passed by the trial Court cannot stand scrutiny and is therefore, set
aside. The application under Section 311 of the Cr.P.C filed by the
petitioners stands allowed.
15. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
ns JUDGE
