Mohan Singh vs State Of Rajasthan
2023 Latest Caselaw 3018 Raj

[2023/RJJD/009496]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.

...

S.B. Criminal Misc. (Pet.) No. 1911/2021

Mohan Singh S/o Jalam Singh, aged about 45 years, B/c Rajput, R/o Village Malunga, Police Station Mathaniya, District Jodhpur (Rajasthan)

---- Petitioner Versus

1. State Of Rajasthan through P.P.

2. Dashrath Singh S/o Revant Singh, aged about 29 years, B/c Rajput, R/o Pani Ki Tanki Ke Pass, Kheme Ka Kuwa, Pal Road, Jodhpur (Raj.).

(Accused/Husband Of Decased).

3. Smt. Hawan Kanwar, aged about 50 years, B/c Rajput, R/o Pani Ki Tanki Ke Pass, Kheme Ka Kuwa, Pal Road, Jodhpur (Raj.).

(Accused/ Mother In Law Of Deceased).

                                                                      ---- Respondents


For Petitioner(s)             :     Mr. P.C. Solanki.
For Respondent(s)             :     Mr. Jagmal Singh Choudhary, Sr.
                                    Advocate assisted by Mr. Pradeep
                                    Choudhary & Ms. Sampati Choudhary.



      HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI

                                         Order

Reportable
13/04/2023.

1. The crucial questions involved in the instant petition for

determination are whether a trial court can permit lacuna in

evidence filled-up and what is meant by "lacuna" in a

case/evidence? It has to be understood before deciding the said

question one way or the other.

[2023/RJJD/009496] (2 of 11) [CRLMP-1911/2021]

2. The present Criminal Misc. Petition has been preferred by the

petitioner-complainant assailing the order dated 10.03.2021

passed by the learned Additional Sessions Judge (Women Atrocity

Cases), Jodhpur Metropolitan in Sessions Case No. 64/2017 titled

as State Vs. Dashrath Singh & Ors., whereby the application filed

by the accused for re-summoning of Dr. Imran Sheikh (PW-5) was

allowed.

3. The respondents No. 2 and 3 are facing trial before the said

Court for the offences punishable under Sections 302, 201/511,

304-B and 313 of the Indian Penal Code (for short, "the IPC") and

accused Dashrath singh is in judicial custody since 26.07.2017.

4. As the trial proceeded almost to the end when the

prosecution and the defence closed their evidence on 29.01.2021,

the case was posted for hearing of final arguments and arguments

on behalf of the complainant/prosecution is completed.

5. It appears that the arguments are being heard in piece-meal.

6. On 22.02.2021, an application came to be filed on behalf of

the accused seeking permission to re-call and re-examination a

witness namely Dr. Imran Sheikh (PW-5). Though the application

was stoutly opposed by the prosecution/complainant's counsel,

the trial court allowed it in exercise of its powers under Section

311 of the Code and summon was ordered to be issued to the said

witness as per impugned order dated 10.03.2021.

7. The learned trial court held that the re-examination of Dr.

Imran Sheikh (PW-5) was essential, since the said witness is an

important link evidence for the prosecution; it is necessary to

conduct a substantial cross-examination of the said witness by the

defence counsel for a just decision of the case; many important

[2023/RJJD/009496] (3 of 11) [CRLMP-1911/2021]

points and aspects in respect of PMR and medical evidence will be

revealed before the Court by giving such permission. According to

the learned trial court, a party cannot be penalised for the

mistakes of his lawyer; the complainant has failed to show as to

how his interest would be prejudiced on recalling of the said

witness. Making above observations, the application under Section

311 of the Code was allowed. The said order dated 10.03.2021 is

assailed in this Misc. Petition.

8. Shri Poonam Chand Solanki, learned counsel for the

complainant-petitioner has vehemently contended that the

impugned order dated 10.03.2021 is absolutely illegal and

amounts to a gross abuse of the process of the Court. He argued

that the power under Section 311 of the Code cannot be exercised

for filling-up the "lacuna" in the defence. It is further argued that

the trial is pending at the final arguments stage and the

arguments on behalf of the complainant-petitioner have already

been completed. During the course of final arguments, when he

drew the attention of the Court towards many important aspects

of the evidence thereafter, the application under Section 311 of

the Code has been filed by the defence for the purpose of filling-

up the lacuna of his defence.

9. It is further argued that almost all the important witnesses

were cross-examined by Shri Dhirendra Singh and Shri Jai Veer

Singh Deora, learned former counsels appearing for the accused.

On 21.08.2019, Shri Pradeep Choudhary, Advocate has filed his

Vakalatanama on behalf of the accused. PW-5 Dr. Imran Sheikh

was examined on 11.12.2018 and on that day, no senior counsel

was appointed on behalf of the accused who could have cross-

[2023/RJJD/009496] (4 of 11) [CRLMP-1911/2021]

examined Dr. Imran Sheikh instead of his associate. It is argued

that no witness can be recalled for examination on the ground that

he was not cross-examined earlier on several important points.

The present application has been filed only for the purpose of

delaying the matter. Had the defence so desired, the present

application could have filed immediately after filing of

Vakalatanama by the Advocate Shri Pradeep Choudhary. It was

thus, submitted that there was no justification before the trial

court to summon the witness Dr. Imran Sheikh (PW-5) for re-

examination. He lastly submitted that in view of his submissions,

it is clear that the learned Court below has erred in passing the

impugned order. In such circumstances, the intervention of this

Court is warranted in this case.

10. Reliance was placed by the learned counsel for the petitioner

in support of his arguments on the following judgments:-

1. AG Vs. Shiv Kumar Yadav & Anr.

AIR 2015 SC 3501

2. K. Anbazhagan Vs. The Superintendent of Police & Ors.

2004 AIR (SC) 524

3. Nisar Khan @ Guddu & Ors. Vs. State of Uttaranchal 2 SCC (Cri.) 568

4. Umar Mohammad & Ors. Vs. State of Rajasthan 3 SCC (Cri.) 244

5. Ratan Lal Vs. Prahlad Jat 2017 AIR (SC) 5006

6. Chaina Ram & Anr. Vs. State of Rajasthan (1999) Cri.L.R. (Raj.) 533

7. State of Haryana Vs. Ram Mehar & Ors. Etc. Etc.

(2016) 3 SCC (Cri.) 577

11. Shri Jagmal Singh Choudhary, learned Senior counsel

assisted by Shri Pradeep Choudhary and Ms. Sampati Choudhary

appearing on behalf of the accused contended that on the date of

[2023/RJJD/009496] (5 of 11) [CRLMP-1911/2021]

recording of the statements of Dr. Imran Sheikh (PW-5), the then

Senior Advocate appearing on behalf of the accused was busy in

some other Court and due to which, Dr. Imran Sheikh (PW-5) was

cross-examined by his associate. In the postmortem report, the

cause of death of deceased Smt. Durga Kanwar has been given as

"Asphyxia due to smothering". Witness Dr. Imran Sheikh has not

been cross-examined on many important points and in absence of

which, the defence of the accused would be seriously effected

therefore, he seeks opportunity under Section 311 of the Code for

further cross-examination of Dr. Imran Sheikh (PW-5). He argued

that looking to the nature of cross exmination of Dr. Imran Sheikh

(PW-5) the ends of justice require that this witness should be

recalled for giving a fair opportunity of cross-examination to the

accused. Thus, it is submitted that the impugned order passed by

the trial Judge calls for no interference by this Court.

12. Learned Sr. counsel for the accused fortified the above made

submissions by placing reliance on the following judgments:-

1. Major Singh Vs. State of Rajasthan & Anr.

S.B.CRL.M.P. No. 3971/2018, decided on 05.03.2020

2. Pankaj Vs. State D.B. Criminal Appeal No. 21/2018, decided on 11.11.2021

3. Bhagirath Vs. State S.B.CRL.M.P. No. 4098/2018, decided on 19.11.2018

13. Heard and considered the arguments of both the parties

advanced at Bar. Perused the impugned order and documents

filed on record as well as the original case file.

14. Perusal of the record reveals that in the present case, the

respondent No.2 and 3 are accused of the crime punishable under

[2023/RJJD/009496] (6 of 11) [CRLMP-1911/2021]

Sections 302, 201/511, 304-B and 313 of the IPC and this case is

of a very heinous crime like, dowry death and murder. The

offences charged are punishable with capital sentence and

sentence of life imprisonment.

15. The postmortem report and Doctor's oral statements are

very important link evidence in such a serious crime. In order to

reach a finding regarding homicidal death, the medical evidence

assumes great importance. The examination-in-chief and cross-

examination of the witness Dr. Imran Sheikh (PW-5), who

conducted the autopsy of the deceased, is going to play a very

important role in determining the fate of the case because his

statement will bring on record the evidence in respect of various

aspects relating to the cause of death of deceased and her

physical state/condition at the time of death. The P.M.R. becomes

important, where the cause of death and its timing is to be

established by the prosecution and it is a matter of controversy.

The PMR and oral testimony of the Doctor, who conducted the

autopsy needs to be analyzed on the basis of standard medical

jurisprudence to reach a possible finding relating to the nature of

death being homicidal.

16. A perusal of the cross-examination, part of the statement of

Dr. Imran Sheikh (PW-5) is sufficient to satisfy this Court that the

questions put to this witness leave much to be desired.

17. The scope and the object of the provision under Section 311

of the Code is to enable the Court to determine the truth and to

render a just decision after discovering all the relevant facts and

obtaining proper proof of such facts. The Court is competent to

exercise such powers even suo-motu if no such application has

[2023/RJJD/009496] (7 of 11) [CRLMP-1911/2021]

been filed by either of the parties. However, the Court must satisfy

itself that it was in fact essential to re-examine such a witness or

to recall him for further examination in order to arrive at a just

decision of the case.

18. It is a common experience in criminal Courts that the

opposite counsel would raise objections whenever the Courts are

requested to exercise powers under Section 311 of the Code by

saying that the Court could not fill-up the lacuna in the case. A

"lacuna" is not to be equated with the fall-out of an over-sight

committed by any party during the trial, either in producing

relevant material or in eliciting relevant answers from a witness.

19. The adage "to error is human" is the recognition of the

possibility of making mistakes to which humans are prone. A

corollary of any such latches by mistakes during the course of

conducting of a case cannot be understood to be a "lacuna".

20. No party in a trial can be fore-closed from correcting the

errors, if proper evidence was not adduced and a relevant material

was not brought on record due to any inadvertence and the Court

should be magnanimous in permitting such mistakes to be

rectified. An over-sight in the management of a case, either by

the prosecution or by the defence cannot be treated as irreparable

lacuna.

21. It is a settled law that for the mistake on the part of the

lawyer, a party ought not to be penalised, if the mistake is found

to be bonafide and genuine.

22. In other words, where the Court exercises the power under

the second part of the provision, the inquiry cannot be whether

the accused has brought anything suddenly or unexpectedly but

[2023/RJJD/009496] (8 of 11) [CRLMP-1911/2021]

whether the Court is right in thinking that the additional evidence

is needed by it for a just decision of the case. It is a cardinal rule

of the law of evidence that the best available evidence must be

brought before the Court to prove a fact or a point in issue.

23. Thus, in view of this, ordering of re-examination of Dr. Imran

Sheikh (PW-5) by trial court was absolutely essential to unfurl the

truth and for a just decision of the case. The defence simply

intends to substantiate the evidence already available on record,

by further examining Dr. Imran Sheikh (PW-5) which cannot be

held to be an attempt to fill-up the lacuna left at the trial.

24. This Court cannot, therefore, accept the contention of the

learned counsel for the petitioner-complainant as a legal

proposition that the power be whittled-down merely on the ground

that the defence discovered latches only when the prosecution

highlighted them during the course of final arguments.

25. In view of the above analysis, it becomes apparent that the

judgments cited by the learned counsel for the petitioner in

support of his above arguments do not help the petitioner in any

manner because the present case is not a case of any

incompetency of former counsel of the accused nor re-

examination of the witness after winning over him by threatening

or intimidation of Dr. Imran Sheikh (PW-5), since he is not a

private person and was working as a Chairman of the Medical

Board at the relevant point of time. It is also not a case wherein,

re-trial of complete case, by re-summoning of all the witnesses

examined, is sought for by invoking provisions under Section 311

of the Code.

[2023/RJJD/009496] (9 of 11) [CRLMP-1911/2021]

26. Coming to the second argument of the learned counsel for

the petitioner-complainant with regard to delay in filing of the

application, no doubt the application was filed at the state of final

arguments of the case but the concept of fair trial cannot be

restrained into a time limit, if the contents of the application filed

under Section 311 of the Code are found to be reasonable,

bonafide and on cogent grounds. There is also no possibility of

any prejudice to the prosecution in allowing the application at a

belated stage because the accused filing the application himself is

in a judicial custody since long. It is mention-worthy that in

Section 311 of the Code, the significant expression that occurs is

"at any stage of inquiry or trial or other proceedings under this

Code". It is, however, to be borne in mind that whereas this

provisions confers a very wide power on the Court yet, the

discretion conferred is to be exercised judiciously.

27. The power of the Court is plenary to summon or even recall

any witness at any stage of the case if the Court considers it

necessary for a just decision. The steps by which the trial court

has permitted in the present case for re-summoning Dr. Imran

Sheikh (PW-5) cannot, therefore, be spurned down nor frowned.

28. It is, therefore, clear that the criminal Court has ample

powers to summon any person as a witness or recall and re-

examine any such person even if the evidence of both the sides is

closed. The jurisdiction of the Court must obviously be dictated by

exigency of the situation, fair play and good sense appear to be

the safe guidelines.

29. Viewed in the light of above analysis and providing a fair

opportunity of cross-examination of Dr. Imran Sheikh ((PW-5) is

[2023/RJJD/009496] (10 of 11) [CRLMP-1911/2021]

essential for ensuring a fair trial of the case. Therefore, there is no

genuine foundation in the contention of the learned counsel for

the petitioner hence, the argument of delay does not hold water.

The judgments cited by the learned counsel for the petitioner on

the aspect of delay in support of his argument also do not help

him in any manner because filing of the present application on

behalf of the accused who is in judicial custody for a long time

cannot be treated as just to cause delay of the trial.

30. This Court would now consider the third contention of the

learned counsel for the petitioner whether the application under

Section 311 of the Code was filed by the accused for the sole

reason of change of his lawyer?

31. It is not the case of the accused that he has filed the present

application due to changing of his lawyers and on this ground that

he is seeking recalling of Dr. Imran Sheikh (PW-5). The

statements of 12 witnesses had been recorded by the trial court

before Shri Pradeep Choudhary, Advocate filed the Vakalatanama

on behalf of the accused. Further cross-examination has been

sought only from one witness. Rather the case of the accused is

that cross-examination of Dr. Imran Sheikh (PW-5) on certain

points was left out. Therefore, it cannot be held that ground of

change of counsel or incompetency of former counsel were the

reasons to file the present application under Section 311 of the

Code. The accused would have sought cross-examination of all the

witnesses if only reason of change of the Advocate would had

been there.

32. Viewed on the above angle, the judgments cited by the

learned counsel for the petitioner on this aspect also do not help

[2023/RJJD/009496] (11 of 11) [CRLMP-1911/2021]

him in any manner because the present case is not found to be a

case in which recall of the witness has been sought due to change

of the counsel only.

33. In the case at hand, the learned trial court has recorded an

irrefutable satisfaction that further examination of Dr. Imran

Sheikh (PW-5) is essential for unfurling the truth in the case and is

necessary in the interest of justice. In this view of the matter, this

Court is of the opinion that all the pleas raised by the learned

counsel for the complainant-petitioner in support of his contention

are untenable on the face of the record.

34. In view of the aforesaid discussions, this Court is of the

opinion that the challenge made to the impugned order dated

10.03.2021 passed by the learned trial court by way of the instant

Criminal Misc. Petition is not sustainable.

35. Resultantly, the present Criminal Misc. Petition being bereft

of any force is, hereby, dismissed. The stay petition also stands

dismissed.

(RAJENDRA PRAKASH SONI),J Mohan/-

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