Punjab-Haryana High Court
Gaje Singh And Other vs State Of Haryana And Another on 23 January, 2023
127 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-3473 of 2023(O&M)
Date of Decision: 23.01.2023
Gaje Singh & Ors.
...Petitioners
Versus
State of Haryana & Anr.
...Respondents
CORAM :HON'BLE MR. JUSTICE KARAMJIT SINGH
Present:- Mr. Sanjiv Kumar Aggarwal, Advocate
For the petitioner.
Mr. Naveen Kumar Sheoran, Addl. AG Haryana.
***
KARAMJIT SINGH, J.
The present petition has been filed by the petitioners seeking
quashing of order dated 13.01.2023 (Annexure P-1) whereby the application
filed by the petitioners under Section 311 Cr.P.C. to recall and re-examine
complainant Ishwar Singh, Dharam Pal injured and Naseeb injured, has been
dismissed by the Court of learned Additional Sessions Judge, Kurukshetra in
Sessions Case No. SC/22/ 2016 pertaining to FIR No. 102 dated 02.06.2012
under Sections 148, 149, 323, 324, 506 IPC (Sections 326, 307, 452, 302
IPC added lateron), Police Station Kurukshetra University, District
Kurukshetra.
The counsel for the petitioners submits that during the trial
aforesaid prosecution witnesses are examined and the copies of their
testimonies are Annexure P-3, Annexure P-4 and Annexure P-5 respectively
and they were also cross-examined by the defence counsel. However,
thereafter when the case was fixed for defence evidence the aforesaid
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prosecution witnesses gave their affidavits before the Panchayat of the
village and in the said affidavits they stated that their testimonies are not
based on actual facts and in reality as the incident had taken place in the
darkness during the night time, they failed to recognize the assailants and the
concerned affidavits are Annexures P-6 to P-8. The counsel for the
petitioners further submits that immediately after the real facts were brought
to the notice of the co-villagers by the complainant and injured witnesses,
the petitioners/ accused filed an application under Section 311 Cr.P.C. in
order to bring to the notice of the trial Court, the true facts. However, the
trial Court dismissed the said application vide order Annexure P-1. The
counsel for the petitioners while relying upon the judgment of this Court in
Baljit & Anr. Vs. State of Haryana & Anr. reported in 2009(2)
RCR(Crl.) 178 submits that prosecution witnesses can be recalled by the
accused who voluntarily wants to withdraw from their testimonies as the
same would serve ends of justice. The counsel for the petitioners further
submits that in Baljit's case (supra) under the similar circumstances, this
Court allowed to recall the material prosecution witnesses for further cross
examination. So, prayer is made that the present petition be also allowed as
the further cross-examination of aforesaid witnesses is necessary for the just
decision of the case.
The State counsel who is having advance notice of the petition
apprised the Court that at present the case is fixed for defence evidence and
at this stage no permission can be given to further cross-examine the
complainant and injured eye-witnesses even if the said witnesses have given
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certain affidavits in favour of the petitioners with regard to their innocence.
So, prayer is made that present petition be dismissed.
I have considered the submissions made by counsel for the
parties.
Undisputedly, in the present case now the trial is at its fag end.
During the trial, complainant and injured witnesses were examined in chief
and also cross-examined at length by the defence counsel as is evident from
Annexure P-3 to Annexure P-5 and their testimonies concluded in 2017 and
the application under Section 311 Cr.P.C. to recall them for their further
cross-examination is filed on 10.01.2023.
This Court is of the view that the said application was rightly
dismissed by the trial Court vide order Annexure P-1 for the following
reasons:-
In the instant case, the complainant and injured witnesses were
examined in 2017 and application under Section 311 Cr.P.C. is filed after a
gap of about 05 years and there is nothing on the record to show that at the
time of recording of the said depositions, the aforesaid material witnesses
were under pressure or threat. Also, the petitioners have failed to give any
reason for the delay in filing of the application under Section 311 Cr.P.C.
The object of the provision of Section 311 Cr.P.C. is to do
justice and this power has to be exercised only for strong and valid reasons
and not as a matter of course. The discretion has to be exercised judiciously
to prevent failure of justice. However, it appears that now the prosecution
witnesses have been won over by the petitioners and that is why under the
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garb of further cross-examination, they want to retract from their earlier
statements made before the police as well as during the trial and only for that
oblique purpose the petitioners have invoked the provision of Section 311
Cr.P.C. The petitioners have also failed to prove that the further cross-
examination of the concerned prosecution witnesses is necessary for the just
decision of the case.
The present case is squarely covered by the judgment of the
Hon'ble Supreme Court in Ratanlal Vs. Prahlad Jat & Ors. reported in
2017(4) RCR(Crl.) 410, wherein also the application moved under Section
311 Cr.P.C. for recalling of witnesses for re-examination under the similar
circumstances was declined.
In view of the above, the counsel for petitioner cannot take any
benefit of the judgment passed in Baljit's case (supra).
For the foregoing reasons, this Court do not find any illegality
in the impugned order. Accordingly, the present petition is hereby dismissed
being devoid of merits and the trial Court should make sincere efforts to
dispose of the trial as expeditiously as possible.
(KARAMJIT SINGH )
23.01.2023 JUDGE
Jiten
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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