Madhya Pradesh High Court
Halke Bhai Gond vs The State Of Madhya Pradesh on 9 February, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 9 th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 1767 of 2024
BETWEEN:-
1. HALKE BHAI GOND S/O OMKAR GOND AGED
ABOUT 23 YEARS, OCCUPATION: AGRICULTURIST
R/O VILLAGE BANDHA (SAILWADA) P.S.
TENDUKHEDA DISTRICT DAMOH (M.P.)
2. MUNEEM S/O PEHLWAN @ VIJAY YADAV AGED
ABOUT 30 YEARS R/O SALAIYA P.S. TENDUKHEDA
DISTRICT DAMOH (M.P.)
3. MUNEEM S/O BUDDHA SINGH GOND AGED
ABOUT 42 YEARS, R/O GRAM BANDHNA P.S.
TENDUKHEDA DISTRICT DAMOH (M.P.)
4. SONU YADAV S/O HALLE BHAI YADAV, AGED
ABOUT 28 YEARS R/O GRAM SAILWADA P.S.
TENDUKHEDA DISTRICT DAMOH (M.P.)
.....PETITIONERS
(BY SHRI VASANT DANIEL WITH MS. SHAIFALI SARAF - ADVOCATES)
AND
THE STATE OF MADHYA PRADESH THROUGH P.S.
TENDUKHEDA DISTRICT DAMOH (M.P.)
.....RESPONDENT
(BY SHRI AMIT PANDEY - PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition under Section 482 of CrPC is directed against the order
dated 06.12.2023, whereby petitioners' application under Section 311 of CrPC
for recalling of prosecution witnesses viz. PW2 (victim's father) and PW3
(victim's mother) who were examined on 23/24.11.2023, was rejected.
2. It was pleaded that cross-examination of witnesses was conducted by a
local counsel who could not effectively cross-examine them on certain specific
points and the main counsel could not appear before the trial Court being
indisposed. He has sent a message seeking for adjournment in the matter but the
same was not considered by the trial Court. The cross-examination on some
crucial aspects remained to be conducted, therefore, application for recalling of
witnesses was filed. The same was not accepted by the trial Court on the
ground that the detailed examination and cross-examination has been done.
3. During course of arguments, on a query being put to the learned counsel
for the petitioner that cross-examination on what documents is to be made in
the matter, he would submit that the questions on the voice sample, handwriting
etc. are to be put to the victim's parents and regarding the presence of the
accused at the place of commission of offence and why their names have not
been taken in the initial report lodged by her father which clearly shows that they
are not involved in the commission of offence. However, the fact remains that
such cross-examination based on the opinion of experts i.e. forensic report with
respect to voice sample, handwriting expert etc. can always be done by calling
experts in the trial. The forensic report cannot be denied being the report given
by the experts.
4. The counsel appearing for the State has vehemently opposed the prayer
contending that cross-examination of the witnesses was being done by the
counsel appearing for the accused. The fact that he could not put up certain
questions to the prosecution witnesses in cross-examination cannot be a ground
to recall the witness. The impugned order is just and proper.
5. In the present case, the petitioners stand prosecuted for the offence of
kidnapping and rape on a minor victim who belongs to Scheduled Tribe
community, for which statement of victim and her parents is relevant. If they
have stated against the accused in their statements before the trial Court, nothing
more is required to be considered if the same inspires confidence. The trial
Court is required to look into the statement of the victim and her parents
coupled with the peculiar circumstances and other evidence available on record.
There is no dispute to the fact that they have been examined and cross-
examined in detail. Hence, no illegality is committed by the trial Court in
rejecting the application under Section 311 of the CrPC.
6. Virtually, no application was filed before the trial Court seeking
adjournment in the matter. Only an allegation has been made which appears to
be an afterthought to the effect that he has sent a message to the local counsel
to seek adjournment. The same could not be dealt with in view of the well-
settled position of law that the unrestricted power cannot be invoked to recall a
witness already examined and cross-examined fully or to permit a party to fill up
any lacuna. Under these circumstances, since no application was filed seeking
for adjournment before the trial Court coupled with the fact that cross-
examination of the witnesses was done by the counsel, no relief can be
extended to the petitioners.
7. As the judgments i.e. Ritesh Sinha vs State of U.P. : AIR 2019 SC 3592,
Veena Gupta vs Bajaj Allianz Life Insurance Co. Ltd. : CM (M) No.1555 of
2019 by High Court of Delhi and Manish Mourya vs State of M.P. : MCrC
No.35470 of 2018 decided on 28.08.2019 by Indore Bench of this Court, which
have been relied upon, are virtually on different facts and footings, the same are
of no help to the petitioners.
8. I t is an admitted position that the victim's father (PW2) and victim's
mother (PW3) appeared in the witness box and their cross-examination was got
conducted by the counsel for the accused. Further, there is no allegation with
respect to incompetency of the counsel or he supporting the victim's case.
There is nothing on record to show that even an attempt was made by the
counsel to get the case adjourned. The law with respect to Section 311 of CrPC
cannot be utilized for filling up a lacunae which has been left out by the previous
counsel. It cannot be used as a tool to fill up the lacunae in the trial rather the
same is to be utilized only to ensure the ends of justice. In the present case, the
victim's parents have been examined and cross-examined in detail.
9. For these reasons, the impugned order neither suffers from any patent
illegality nor would it result in miscarriage of justice. As such, no interference
under the inherent powers is called for.
10. The petition sa n s merit and is accordingly dismissed. No order as to
costs.
(VISHAL MISHRA)
JUDGE
VV
