Harish Bhai & another vs State of M.P. & another

The applicant has preferred this criminal revision under Sections 397 & 401 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 25.05.2016 passed by Third Additional Sessions Judge, District Guna in Sessions Trial No.332/2012, whereby the application filed by the applicant under Section 311 of the Code of Criminal Procedure has been rejected.

Facts leading to filing the instant revision application are that the applicant and one co-accused are facing trial for the offence punishable under Section 306 of IPC in the Court of Third Additional Sessions Judge, District Guna in which the statement of Payal (PW-3) has been recorded on 04.09.2013. The applicant had filed a criminal case against Payal (PW-3) and the other co-accused persons before the Additional Chief Judicial Magistrate, Mahava bearing Case No.39/12 (Ekta Natani vs. Radheshyam Natani & Others) under Section 12 of

the Protection of Women from Domestic Violence Act, 2005, in which PW-3 Payal appeared and filed reply on 29.09.2014. In the reply, she has sated that she never went in the house of Ankur Natani before his death. This statement of Payal (PW3) has led the applicant to file the application under Section 311 of Cr.P.C. for recalling PW-3 Payal for cross- examination, which was rejected by the learned trial Court.

Learned counsel for the applicant submits that the statement of Payal PW-3 was recorded on 04.09.2013, thereafter she appeared before the Additional Chief Judicial Magistrate, Mahava in Criminal Case No.39/2012 and she filed reply on 29.09.2014, in which she has stated that she was living 200 Km. away from Binaganj and she did not go to Binaganj after marriage of Ankur. She went to Binaganj after the death of Ankur. This version is against the statement which was given on 04.09.2013 before the Third Additional Sessions Judge, Guna, hence on this point cross-examination is essential to meet out the said contradiction. Therefore, the applicant filed an application under Section 311 of Cr.P.C. for recalling Payal (PW-3) which was wrongly rejected by the trial Court.

On the other hand, learned Public Prosecutor for the State supported the impugned order and prayed for dismissal of this revision.

I have considered the rival contentions advanced by the parties and have perused the documents available on record.

The object underlying Section 311 of the Code is that there may not be failure of justice on account of

mistake of either party in bringing the vulnerable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is that whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is general in nature which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry.

In this context, from the perusal of the Statement of Payal alias Sarika (Parul) PW-3 recorded on 04.09.2013, it appears that his elder brother Ankur was married with Ekta Natani on 19.01.2012. After two months of marriage, Ankur received a call from Rohit Khandelwal saying that he had love affairs with Ekta Natani and she is conceived by him. When Ankur asked Ekta Natani about the love affairs with Rohit Khandelwal, she confessed love affairs with Rohit Khandelwal, then Ankur called her sister and on his invitation she came to Binaganj where Ekta Natani assured her sister-in-law that she will not have any contact with Rohit Khandelwal in future but due to relation with Rohit Khandelwal, Ankur committed suicide. On this point, she was cross-examined by the defence counsel at length.

In case of Mishralal and Others Vs. State of M.P.

and Others reported in (2005) 10 SCC 701, the Hon''ble Apex Court observed inter alia as follows :-

"5. The learned counsel for the appellants seriously attacked the evidence of Mokam Singh (P.W. 2). This witness was examined by the Sessions Judge on 6.2.1991 and cross-examined on the same day by the defence counsel. Thereafter, it seems, that on behalf of the accused persons an application was filed and Mokam Singh (P.W. 2) was recalled. P.W. 2 was again examined and cross- examined on 31.7.1991. It may be noted that some of the persons who were allegedly involved in this incident were minors and their case was tried by the Juvenile Court. Mokam Singh (P.W. 2) was also examined as a witness in the case before the Juvenile Court. In the Juvenile Court, he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he assumed that they were some Banjaras. Upon recalling, Mokam Singh (P.W. 2) was confronted with the evidence he had given later before the Juvenile Court on the basis of which the accused persons were acquitted of the charge under Section 307, IPC for having made an attempt on the life of this witness."

In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that 6 witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of Mokam Singh (P.W. 2) on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the Court should take a serious action against such witnesses."

The factual scenario in Mishralal''s case (supra) is clearly applicable to the facts of the present case. Therefore, the trial Court has not committed any error rejecting the application under Section 311 of Cr.P.C. filed by the applicant/accused.

I find no infirmity in the order of the trial Court warranting interference. The revision petition is without merit and is dismissed accordingly.