Jaswinder Kaur vs State Of Punjab
2023 Latest Caselaw 11455 P&H

                        CRR-148-2022 (O&M)                                         2023:PHHC:098737
                                                                  1

                        245
                                      IN THE HIGH COURT OF PUNJAB AND HARYANA
                                                    AT CHANDIGARH

                                                                      CRR-148-2022 (O&M)
                                                                      DECIDED ON: 01.08.2023

                        JASWINDER KAUR
                                                                              .....PETITIONER
                                                          VERSUS

                        STATE OF PUNJAB

                                                                              .....RESPONDENT

                        CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI


                        Present: Mr. Kamaldip Singh Sidhu, Advocate
                                 for the petitioner.

                                      Mr. Harsimar Singh Sitta, DAG, Punjab.

                                 ****

JASGURPREET SINGH PURI, J (ORAL)

1. Mr. Amardeep Singh, Advocate has appeared and filed his power

of attorney on behalf of complainant today in the Court and the same is taken

on record.

2. Learned counsel for the petitioner has submitted that the petitioner

is a lady of the age of 34 years who is an accused in the present case. The

allegations against the petitioner was that she had killed her own husband.

3. Learned counsel for the petitioner has submitted that at the time,

when the trial commenced, the petitioner was in custody and PW-1 is her

mother-in-law. Her examination-in-chief was recorded on 19.02.2020 and

she was subjected to cross-examine on 26.11.2020 and 03.12.2020. Similarly,

other witness PW-2, namely, Dharam Singh, who was stated to be an eye-

witness was also examined on 19.02.2020. His cross-examination was

deferred and he was subjected to cross-examine on 16.12.2020. Learned KUSUM 2023.08.16 17:05 I attest to the accuracy and authenticity of this order/judgment Punjab & Haryana High Court, CHD CRR-148-2022 (O&M) 2023:PHHC:098737

counsel for the petitioner further submitted that the petitioner was in custody

at that point of time and learned defence counsel had neither consulted the

petitioner nor was there any interaction with the petitioner, in view of the fact

that the entire country was facing Covid-19 pandemic and not only

restrictions were imposed for some period of time, even curfew was also

imposed. Thus, because of this reason, she could not be consulted before the

defence counsel. Learned State counsel further submitted that the petitioner is

having a mentally retarded child and she is rather now residing in her in-

law's house.

4. An application was filed for recalling of the aforesaid two

witnesses on the ground that the petitioner was not even consulted before the

defence counsel. Learned counsel further submitted that when she was

released on interim bail on 19.05.2021, she had consulted with the defence

counsel and thereafter the application under Section 311 Cr.P.C. was moved

for recalling the PW-1 and PW-2.

5. While elaborating his submissions, he submitted that there was a

need to move such an application under Section 311 Cr.P.C., because, in fact,

it was a case where the incident had taken place on 29.05.2019 and on the

same date, the complainant had approached the Police by filing an

application to the SHO Police Station, Rajpura by informing that her son,

who is the deceased, came to the house under the influence of intoxicant and

then he accidentally got hit by string wire affixed in the courtyard of the

house and suffered injury on his neck and he was immediately taken to

Neelam Hospital, Rajpura for treatment, where he was under treatment and

there is no fault of anybody. The aforesaid letter which was issued to the

SHO has been placed on record as Annexure A-1. He submitted that it was KUSUM 2023.08.16 17:05 I attest to the accuracy and authenticity of this order/judgment Punjab & Haryana High Court, CHD CRR-148-2022 (O&M) 2023:PHHC:098737

thereafter the present FIR was lodged on 31.05.2019 for the reasons best

known to the complainant by giving a different version. He also submitted

that recalling of the witnesses for cross-examination would go to the root of

the case but the learned trial Court dismissed the application under Section

311 Cr.P.C., only on the ground that it would cause delay in trial even after

noticing that the petitioner was already in jail, at the time when the cross-

examination was conducted.

6. Learned counsel for the petitioner submitted that one opportunity

may be granted, so that the aforesaid two witnesses i.e. PW-1 and PW-2 can

be cross-examined again in the interest of justice.

On the other hand, learned counsel for the complainant submitted

that the application was moved in order to delay the proceedings of the trial.

He has however not opposed the prayer of the petitioner in view of the fact

that the prayer is only for re-examination of the witnesses.

7. I have heard learned counsel for the parties.

8. Learned counsels for the parties submitted that the matter is still at

the stage of recording the statements under Section 313 Cr.P.C. A perusal of

the impugned order would show that the application was dismissed on the

ground that full opportunity was given to the defence counsel for cross-

examination of witnesses and it was further recorded by the learned Sessions

Judge that the defence counsel was not able to get instructions from the

petitioner and he could not cross-examine the witnesses at the initial stage

and that the application was filed to recall the said witnesses for some

oblique motive and therefore it was declined. However, this Court is of the

view that considering the letter (Annexure A-1) dated 29.05.2019 and the fact

that the petitioner is a lady of the age of 34 years and was in custody at the KUSUM 2023.08.16 17:05 I attest to the accuracy and authenticity of this order/judgment Punjab & Haryana High Court, CHD CRR-148-2022 (O&M) 2023:PHHC:098737

time of cross-examination and the fact that the aforesaid Annexure A-1 is a

vital document which goes to the root of the controversy, the present petition

deserves to succeed.

9. Learned counsel for the parties have also submitted before this

Court that even today, the petitioner is residing in the house of her in-laws

and she has a mentally retarded son, living with her.

10. Consequently, the present petition is allowed. The order dated

09.12.2021 is hereby set aside. The trial Court shall afford one opportunity to

the petitioner to recall the witnesses for the purpose of their cross-

examination.

                                                                  (JASGURPREET SINGH PURI)
                                                                          JUDGE
                        01.08.2023
                        neelam/kusum

                                      Whether speaking/reasoned       Yes/No
                                      Whether reportable              Yes/No




KUSUM
2023.08.16 17:05
I attest to the accuracy and
authenticity of this order/judgment
Punjab & Haryana High Court, CHD