Anurag Sharma vs The State of Madhya Pradesh

G.S. Solanki, J.—This revision has been filed by the applicant under Section 397/ 401 of the Cr.P.C. being aggrieved by order dated 18.7.2014 passed by Second Additional Sessions Judge, Satna in S.T. No. 284/2013 whereby the application filed by the prosecution under Section 311 of the Cr.P.C. has been dismissed.

The facts, in short, giving rise to this revision are that Anupam Sharma, the brother of the applicant/complainant is alleged to have been murdered by accused Vijay Singh. It is further alleged that at the time of the incident, witness Tejendra Tiwari is accompanied the deceased and he witnessed the incident. He immediately informed about the incident to the applicant. The applicant lodged the FIR at P.S. Kotar, District Satna. A crime was registered against accused Vijay Singh.

After due investigation, he was prosecuted before JMFC, who in turn, committed the case to the Court of Sessions, from where the case was made over to Second Additional Sessions Judge, Satna where the accused is facing trial for the offence punishable under Section 302 of the IPC and Section 25/ 27 of the Arms Act.

During trial, on 30.4.2014, witness Tejendra Tiwari (PW-10) has been examined. He turned hostile. After due permission, the public prosecutor asked the leading questions to Tejendra Tiwari and he has been discharged after cross examination.

On 4.7.2014, an application has been filed by public prosecutor Dinesh Shrivastava under Section 311 of the Cr.P.C. inter-alia on the ground that the previous prosecutor has failed to properly cross-examine hostile witness Tejendra Tiwari (PW-10), which application was dismissed by the trial Court, hence this revision.

Learned counsel for the applicant has submitted that the trial Court has committed illegality in dismissing the application filed by the public prosecutor under Section 311 of the Cr.P.C. It is further submitted that previous public prosecutor Raghvendra Singh Patel has failed to get declared witness Tejendra Tiwari as hostile. Even he was not permitted to conduct the trial of S.T. No. 284/2013 and another public prosecutor Mr. Dadan Ram Tripathi was appointed to conduct the aforesaid trial. It is further submitted that it was the duty of the Court to remove the anomaly created in recording the evidence. The Court ought to have recalled witness Tejendra Tiwari for just and proper adjudication of the case. Counsel has placed reliance on the decisions of the Apex Court in Sister Mina Lalita Baruwa Vs. State of Orissa and Others, and Mannan Sk. Vs. State of West Bengal, .

Learned counsel for the State has supported the order passed by the trial Court and has submitted that the trial Court has not committed any illegality in dismissing the application filed by the prosecutor, therefore, this revision is liable to be dismissed.

I have heard the learned counsel for the parties at length and gone through the impugned order, statements of Tejendra Tiwari (PW-10) recorded before the trial Court as well as under Section 161 of the Cr.P.C. and other material on record. It reveals that the statement of Tejendra Tiwari was recorded before the trial Court on 30.4.2014 and the application for recalling him was filed on 4.7.2014 after more than 2 months. It further reveals that witness Tejendra Tiwari was declared hostile by the Court and the permission was granted to the then public prosecutor Raghvendra Singh Patel to ask leading questions in the form of cross-examination. Raghvendra Singh Patel asked certain leading questions and confronted Tejendra Tiwari with the relevant part of his previous statement (Ex. P-15), thereafter the aforesaid witness was fully cross-examined by the counsel of the accused, thus, the ground taken that the previous public prosecutor could not get declared this witness as hostile, is baseless. So far as the contention that Raghvendra Singh Patel was not permitted to conduct the trial of S.T. No. 284/2013, is concerned, there is absolutely nothing on record to show that Raghvendra Singh Patel was not authorized to conduct the aforesaid sessions trial.

The facts of Sister Mina Lalita Baruwa Vs. State of Orissa and others (supra) are totally different than the instant case. In that case, misstatement was made by the officer holding identification parade and same was unnoticed by the prosecution. In the instant case no such situation has arisen. In the instant case, witness Tejendra Tiwari has been duly declared as hostile. He was confronted with his previous statement recorded under Section 161 of the Cr.P.C. Similarly, the facts of Mannan SK and others Vs. State of West Bengal and another (supra) are also different than the instant case. In that case, the investigating officer had recorded the statement of deceased, which was not brought on record inadvertently, therefore, for the purpose of just adjudication of the case, the witness was recalled. No such situation has arisen in the instant case.

Considering the overall facts and circumstances of the case, in my opinion, the trial Court has not committed any illegality or irregularity in dismissing the application filed by the prosecutor under Section 311 of the Cr.P.C. I do not find any ground to make interference in the impugned order.

Consequently, the revision being devoid of merits, is hereby dismissed.