Devi Singh Patel vs The State Of Madhya Pradesh
2024 Latest Caselaw 27799 MP

Madhya Pradesh High Court

Devi Singh Patel vs The State Of Madhya Pradesh on 4 October, 2024

Author: Dinesh Kumar Paliwal

Bench: Dinesh Kumar Paliwal

                                    1




       IN THE HIGH COURT OF MADHYA PRADESH
                                AT JABALPUR
                                  BEFORE
       HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL

                  MISC. CRIMINAL CASE No.24265/2024

                     DEVI SINGH PATEL
                            Versus
         THE STATE OF MADHYA PRADESH AND OTHERS

Appearance:

(Shri Pushpendra Kumar Dubey - Advocate for the petitioner)
(Shri Atmaram Ben - Deputy Government Advocate for the respondent
No.1/State.
(Shri R.P. Thakur - Advocate for respondent No.2)
.........................................................................................................................................................

Reserved on      : 17.09.2024
Pronounced on : 04.10.2024
.........................................................................................................................................................

                                  ORDER

With the consent of learned counsel for the parties, arguments are heard finally.

2. This petition under Section 482 of Cr.P.C., 1973 has been filed by the petitioner complainant to invoke the extra ordinary jurisdiction of this Court being aggrieved and dissatisfied by the order dated 24.05.2024, passed by the learned Additional Sessions Judge, Narsinghpur in S.T.No.116/2023 (State of M.P. Vs. Inderpal Singh and Others) for commission of offence under Section 148, 450, 302, 149 of

IPC, whereby an application under Section 311 of Cr.P.C. to recall prosecution witnesses namely Devi Singh Patel (PW1), Prahalad (PW2), Bhagwan Singh (PW3), Devi Singh (PW4) and Kunj Bihari Lodhi (PW6) for further cross-examination has been allowed.

3. Facts of the case, in short, are that on 11.05.2023, Devi Singh Patel, informed the Gotegaon Police that he is a graduate and is a farmer. On 10.05.2023, at around 5:30 P.M., he was at his agricultural field. He received a call from his cousin Kunj Bihari who told him that Inderpal Patel along with his companions has given Baka blow on the neck of Nitin Patel in the courtyard of Kunj Bihari. After receiving the information, he reached at Kunj Bihari Lodhi's house, where he came to know that Nitin has already been taken to the Hospital and has been referred from Gotegaon to Jabalpur. Kunj Bihari informed him that on 10.05.2023, at around 5:15 P.M. Nitin Patel from Gotegaon came to his home and when he entered into his courtyard, on account of old enmity Inderpal Patel, Kamlesh Patel, Bhagwan, Harpal, Gopal and Dilli Patel and Akhilesh by forming an unlawful assembly and in furtherance of their common object came and abused Nitin Patel and with an intention to kill him Bhagwan and Harpal caught hold Nitin's left hand, while Akhilesh and Bhagwan were exhorting to kill Nitin. Gopal and Dilli caught hold Nitin's right hand and thereafter Inderpal with an intention to kill Nitin gave battle axe blow on the neck of Nitin. Kamlesh Patel by means of Baka gave blow on Nitin's head. Nitin Patel after sustaining injuries fell down in the courtyard. After causing injuries,

they all fled away from the spot. Incident was witnessed by Kunj Bihari, Prahlad Thakur, Bhagwan Singh Patel and Divva Choudhary and they all took him to Government Hospital Gotegaon and from Gotegaon he was referred to the Medical College Jabalpur. FIR was registered. In Medical College, Jabalpur he was declared as "brought dead". In postmortem report deceased was found murdered due to ante-mortem injuries caused on head by heavy sharpened object. After investigation, charge sheet has been filed.

4. In the course of investigation, learned trial Judge framed the charges against the accused persons respondents No.2 to 6 for commission of offences under Section 148, 450, 302, 149 of IPC. Petitioners claimed to be tried.

5. On 07.02.2024, prosecution witness Devi Singh Patel (PW1), Prahlad (PW2), Bhagwan Singh (PW3) were examined and cross- examined. While on 22.02.2024 Devi Singh PW4, Narayan Singh Patel PW5 were cross-examined and on 14.03.2024 Kunj Bihari was examined in chief and cross-examined and discharged. On 07.05.2024, learned counsel for the Inderpal and others moved an application under Section 311 of Cr.P.C. contending that witness No.1 to 4 and 6 have tendered their evidence. They have deposed against the prosecution story. It was also contended that no effective cross-examination has been made on the aforesaid witnesses. Therefore, they may be recalled for further cross-examination.

6. Application under Section 311 of Cr.P.C. filed by the learned counsel for Inderpal and others was allowed by the impugned order dated 24.05.2024 by learned Additional Sessions Judge mentioning that the aforesaid witnesses have not been effectively cross-examined. Therefore, it allowed the application and summoned the aforesaid witnesses for further cross-examination. Hence, this petition by the complainant Devi Singh Patel who is examined as PW1.

7. Learned counsel for the petitioner has submitted that witnesses Devi Singh Patel (PW1), Prahlad (PW2), Bhagwan Singh (PW3), Devi Singh (PW4) and Kunj Bihari (PW6) have already been fully examined in chief and cross-examined in open Court by the counsel for the accused. When once witnesses have been examined and cross- examined fully they cannot be re-called for further cross-examination to fill up the lacuna and to bolster his argument learned counsel has placed reliance on the judgment passed in the case of Rajaram Prasad Yadav vs State Of Bihar & Anr, reported in 2013(14) SCC 461 and has contended that powers conferred under Section 311 of Cr.P.C. must be invoked by the Court only in order to meet the ends of justice for strong and valid reasons. The same must be exercised with care and caution and circumspection but learned trial Court have passed the impugned order without assigning the valid reasons. Therefore, he has prayed to set aside the impugned order.

8. On the other hand, learned counsel for the respondent No.2 has

submitted that a perusal of the cross-examination of the aforesaid witnesses reveals that no effective cross-examination has been made by the counsel who was representing Inderpal, Dilli Patel and Akhilesh. He has put only 4-5 questions and same cannot be termed as effective cross-examination. It is contended that it is the right of the accused to effectively cross-examine the witness to bring out the truth because cross-examination is only tool in the hand of the accused by which truth can be elucidated. Therefore, learned Additional Sessions Judge has not committed any error in allowing the application and permitting the further cross-examination of the aforesaid witnesses.

9. Learned Deputy Government Advocate appearing for the respondent/State has opposed the prayer made by respondent No.2 and has supported the impugned order passed.

10. I have heard learned counsel for the parties, perused the impugned order and other material available on record.

11. I find no force in the submissions of learned counsel for the petitioner as the same is not worth acceptance. In order to appreciate the stand of the petitioner, it will be worth while to refer to Section 311 of Cr.P.C. The same is extracted here under:

"311. Power to summon material witness, or examine person present.

- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence

appears to it to be essential to the just decision of the case."

12. A conspicuous reading of Section 311 Cr.P.C. would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a pre-fix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case.

13. It is imperative that the invocation of Section 311 Cr.P.C. and its application in a particular case where witnesses can be ordered to recall by the Court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted earlier. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. Insofar as recalling and re-examination of any person

already examined, the Court must necessarily consider and ensure that such recall and re-examination of any person, appears in the view of the Court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.

14. In the case of Natasha Singh Vs. CBI (State); (2013) 5 SCC 741, Hon'ble the Apex Court has held as under:-

"15. 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, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, 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 great caution and circumspection. The very use of words such as 'any Court', 'at any stage", or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest

possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

16. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide: Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors., AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v. State through C.B.I., (2012) 3 SCC

387)."

15. In view of the above discussion of the Hon'ble Apex Court, it is clear that 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. However, the exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power

by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. The wide discretionary power should be exercised judiciously and not arbitrarily. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party. The power under Section 311 Cr.P.C. must therefore, 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.

16. In the light of the above principle when I examined the facts and circumstances of the present case in hand. On perusal of the deposition sheet of the aforesaid witnesses, it is apparent that learned trial Court while passing the impugned order has not committed any error in recalling the aforesaid witnesses for further cross-examination. On a perusal of the cross-examination conducted by the counsel for the accused respondent No.2 Inderpal and others, it is revealed that only in 5-6 lines cross-examination has been completed. It cannot be overlooked that it is a murder trial and the witnesses except PW1 have

been directed to recall for cross-examination are eye witnesses. It is apparent that effective cross-examination has not been made on them on number of points. Therefore, the impugned order passed by the learned trial Court cannot be said to be erroneous as it is paramount duty of the trial Court to ensure that justice is done by punishing the guilty and acquitting the innocent which can be achieved only when the truth is discovered. Truth emerges when all the relevant pieces of evidence and material collected by the prosecution are put to trial by adducing of evidence. In this exercise of search of truth the importance of impartial eye witnesses can guide and assist the trial Court to separate grain from chaff and in the process enable the trial Court to render right and just decision.

17. Undoubtedly, recall is not a matter of course and discretion given to the Court has to be exercised judiciously to prevent the failure of justice and not arbitrarily. As already noted on scrutiny of the evidence of the witnesses who have been called for further cross-examination, this court find that no necessary questions have been put to them with regard their involvement in commission of offence. Averments made in the application under Section 311 of Cr.P.C seems to be relevant and cogent for disposal of murder trial. Opportunity to accused/respondent No.2 for cross-examination of eye witnesses and the person who lodged FIR does not limit only for benefit of the prosecution it also will not weaken case of prosecution. It would be beneficial for scrutinizing the evidence of the prosecution witnesses. It is one of the sole object of

every fair criminal trial that accused must be given fair and proper opportunity to prove his innocence.

18. The object underlying Section 311 of Cr.P.C. is that there may not be failure of justice on account of mistake of either parties in bringing the valuable evidence on record or legal ambiguity in the statement of witnesses examined from either side. The determinative factor is that whether it is essential to the just decision of the case. As already noticed that on a perusal of the evidence of the aforesaid witnesses before the trial Court it is apparent that they have not been properly cross-examined by the counsel who has conducted their cross- examination as cross-examination is only in 5-6 lines. In aforesaid facts and scenario it appears justified on the part of trial Court to allow application under Section 311 of Cr.P.C. which has been filed without any delay, as it was essential for the just decision of the case. Hence, discretion exercise by the trial Court appears judicious. Therefore, the impugned order passed by the trial Court appears to have been passed with an object of rendering justice and just decision of the case. The discretion exercised by the trial Court did not appear to be arbitrary or capricious. Therefore, I am of the considered view that no interference is warranted in the impugned order in exercise of its power under Section 482 of Cr.P.C. by this Court.

19. In view of the above discussion, no interference is called for in the impugned order. Hence, this petition being devoid of merits is dismissed.

(DINESH KUMAR PALIWAL) JUDGE Jasleen