Uttarakhand High Court
Joga Ram vs State Of Uttarakhand on 30 April, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 198 of 2024
Joga Ram ....Revisionist
Vs.
State of Uttarakhand ..... Respondent
Mr. M.S. Pal, Senior Advocate assisted by Mr. Kunwar Vikramaditya
Shah, Advocate for the revisionist.
Ms. Manisha Rana Singh, A.G.A. for the State of Uttarakhand.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to
order dated 01.03.2024, passed in Sessions Trial No.21
of 2022, State Vs. Joga Ram, by the court of Sessions
Judge, Pithoragarh, District Pithoragarh ("the trial").
2. Heard learned counsel for the parties and
perused the record.
3. The revisionist is facing the trial under
Sections 304B and 498 IPC. The revisionist was
examined under Section 313 of the Code of Criminal
Procedure, 1973 ("the Code") on 01.03.2024. In his
defence, he wanted to examine a witness Trilochan alias
Trilok Chandra Bhatt, who was a witness at Serial No.5
in the chargesheet.
4. The prosecution had not opted to examine
Trilochan alias Trilok Chandra Bhatt as a witness. The
application filed by the revisionist was rejected by the
court below holding that the witnesses, who have been
discharged, may not be examined as defence witnesses.
5. In the impugned order, reliance has been
placed on the principles of law, as laid down in the case
of State of M.P. Vs. Badri Yadav and anotherr, (2006) 9
SCC 549.
6. Learned Senior Counsel appearing for the
revisionist would submit that in order to afford an
opportunity of fair trial, as also in order to afford an
opportunity to the revisionist to prove his innocence,
examination of Trilochan alias Trilok Chandra Bhatt, as
a witness, is necessary. Therefore, the application for
examining Trilochan alias Trilok Chandra Bhatt, as a
defence witness, filed by the revisionist ought to have
been allowed; the impugned order is bad in the eye of
law.
7. Learned State Counsel would submit that
the statement of Trilochan alias Trilok Chandra Bhatt,
whom the revisionist wants to examine as defence, is not
vital for the just decision of the case.
8. It is the prosecution case that after
marriage, the revisionist did harass the deceased for and
in connection with the demand of dowry and on
15.03.2022, at about 12:00 in the noon, the deceased
telephonically informed that she was being attacked with
stones by the revisionist and she was killed.
9. Witness Trilochan alias Trilok Chandra
Bhatt is a chargesheeted witness. His statement under
Section 161 of the Code has been recorded, which is
produced for the perusal of the Court. He runs a shop.
In his statement given during investigation, he told it to
the Investigating Officer that on 15.03.2022, he had
seen the deceased walking ahead and the revisionist was
following her. Thereafter, the deceased was found in a
pond. This witness has given his opinion to the
Investigating Officer as to how the revisionist could have
saved the life of his wife.
10. In the case of Badri Yadav (supra), the facts
were quite distinct. In that case, two eye witnesses had
already been examined as PW8 and PW9. But
subsequent to it, they filed an affidavit claiming that
they were pressurised and tutored to give such
statement. They were subsequently examined as defence
witnesses, as DW1, Mohd. Amin, and DW2, Zakir Ali,
respectively. The trial court had convicted the accused in
the case of Badri Yadav (supra), but the High Court had
reversed the finding relying upon the testimony of DW1
and DW2. Under those fact and circumstances, the
Hon'ble Supreme Court has held that, "it illustrates
the disquieting feature as to how the High Court has
committed a grave miscarriage of justice in
recording the acquittal of the respondents."
11. In Para 14 of the judgment in the case of
Badri Yadav (supra), the Hon'ble Supreme Court
observed as follows:-
"14. Section 233 itself deals with
entering upon defence by the accused. The
application for recalling and re-examining
persons already examined, as provided
under Section 311 CrPC, was already
rejected. The power to summon any person
as a witness or recall and re-examine any
person already examined is the
discretionary power of the court in case
such evidence appears to it to be essential
for a just decision of the case. Under
Section 233 CrPC the accused can enter
upon defence and he can apply for the
issue of any process for compelling the
attendance of any witness in his defence.
The provisions of sub-section (3) of Section
233 cannot be understood as compelling
the attendance of any prosecution witness
examined, cross-examined and discharged
to be juxtaposed as a defence witness. In
the present case PW 8 and PW 9 were
juxtaposed as DW 1 and DW 2. This
situation is not one what was contemplated
by sub-section (3) of Section 233 CrPC."
12. In fact, the factual aspects in the case of
Badri Yadav (supra) were quite distinct. In the instant
case, the chargesheeted witness, who was examined
during investigation, has never been examined by the
prosecution. Now if the revisionist wants to produce him
as a defence witness, he should get an opportunity to do
so. Therefore, this Court is of the view that the Court
below has committed an error in rejecting the
application 64-B filed by the revisionist. Accordingly, the
revision deserves to be allowed.
13. The revision is allowed.
14. The application 64-B, filed in the trial for
examination of Trilochan alias Trilok Chandra Bhatt is
allowed.
14. The revisionist shall be afforded an
opportunity to examine Trilochan alias Trilok Chandra
Bhatt, as a defence witness.
(Ravindra Maithani, J.)
30.04.2024
Ravi Bisht
