Kadali Mohanrao and Others vs State and Another

This revision is directed against the order dated 16-10-1997 of the Sessions Judge, East Godavari at Kakinada in Criminal RP.No.879/95 in Sessions CaseNo.313/95.

The facts giving rise for filing of this revision are as under:

The petitioners herein are being tried in S.C.No.313/95 of the offences under Sections 498A and 304B I.P.C. The 2nd respondent herein (hereafter referred as respondent) is the father of the deceased Sathya Kumari. The respondent and his wife were examined as PWs. 1 and 2. They did not give any evidence in support of the prosecution and they have been treated as hostile and cross-examined by the Special Public Prosecutor. But, their son was examined as PW6 and he deposed in support of the prosecution and through him, the documents were also marked. When the matter was at the stage of examination of the accused u/s 313 Cr.P.C., the respondent herein filed C.R.P.MP.879/97 u/s 311 Cr.P.C. to recall and further examine him and his wife (PW2) or to examine them as Court witnesses alleging that they were threatened to give false evidence at the instance of the defence Counsel and the Special Public Prosecutor and that they are now prepared to put forth the true version with regard to the commission of the offences by the accused. That petition was resisted by the accused contending that it has been filed only to create prejudice in the mind of the Court against the accused and deprive the accused fair trial. The Special Public Prosecutor denied the allegation that he had connived with the defence Counsel and forced PWs.l and 2 to give false evidence. The Counsel for the accused filed 4 documents, two of them being affidavits given by K. Jacob and N. Sriramachandra Murthy and the other 2 are letters addressed to the defence Counsel S.R.K. Hanumantha Rao by V. Chandrasekhar, Advocate, Amalapuram and Sri M.S. Kumar, Advocate, Rajahmundry. It is observed by the learned Sessions Judge that the 2 affidavits filed on behalf of the accused disclose that PWs.1 and 2 had entered into a compromise with the accused and accordingly, PWs. 1 and 2 did not support the prosecution case and that subsequently, there was a breach of compromise and therefore, their son examined as PW6 supported the prosecution case. The learned Sessions Judge also observed that the letters submitted by the Advocate disclose that the defence Counsel S.R.K. Hanumantha Rao had not compelled PWs.1 and 2 to give false evidence. The learned Sessions Judge held that the evidence of PWs. 1 and 2 is essential for ajust decision in the case, as PWs. 1 and 2 are no other than the parents of the deceased, and as the offences alleged against the accused are dowry death and harassment of the deceased and that PWs.1 and 2 are material witnesses. The learned Sessions Judge also observed that PWs. 1 and 2 were made to give false evidence on account of their circumstances stated by them or under the circumstances stated in the affidavits given by the third parties. Therefore, the learned Sessions Judge exercising his discretion, allowed the petition and ordered for examination of PWs.l and 2 as Court witnesses.

Challenging the said order, the accused have come up with this revision.

The learned Counsel for the petitioners raised two contentions. Firstly, the petition has been filed to examine PWs.1 and 2 as Court witnesses at the fag end of the trial i. e., at the stage when the matter is posted for the examination of the accused u/s 313 Cr.P.C. and Therefore, the learned Sessions Judge ought not to have exercised his discretion in allowing the petition and thus caused prejudice to the accused- Secondly, PWs. 1 and 2 who were examined earlier did not support the prosecution case and they were treated hostile and cross-examined by the Special Public Prosecutor and if the same witnesses are examined as Court witnesses, it amounts to filling up the gaps in the prosecution case and therefore, the trial Court ought not to have exercised its discretion and summoned the PWs.1 to 2. The learned Counsel for the 2nd respondent as well as the Additional Public Prosecutor, representing the 1st respondent-State refuted the said contentions and submitted their arguments in support of the impugned order.

For proper appreciation, it may be necessary to refer to Section 311 Cr.P.C. which reads thus : "Section 311. Power to summon material witness or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

This Section 311 Cr.P.C. enables the Court at any stage of any inquiry, trial or proceedings under the Code, to summon any person as a witness, the power is not confined to any particular class of person as witness. The power has been conferred to satisfy the quest of the Court in order to do justice between the parties. It is crystal clear that justice is not on the point of view of the prosecution or of the accused, but justice from the point of view on an orderly society. This Section, manifestly is in two parts and the word used in the first part is ''may''; the second part uses "shall". In consequence, the first part gives purely discretion to the Court and enables it at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon any person as a witness or (b) to examine any person present in Court or (c) to recall and re-examine any person whose evidence has already been recorded; on the other hand, the second part is mandatory and compels the Court to lake any of the afore-mentioned steps if the new evidence appears to it essential to the just decision of the case. The Court examines this evidence neither to help the prosecution nor to help the accused, but the evidence is examined in the interest of justice.

As seen from the impugned order, the learned Sessions Judge held in the circumstances of the case that recalling PWs. 1 and 2 or examining them as Court witnesses, is essential for the just decision of the case. Hence, this falls in the 2nd limb of Section 311 Cr.P.C. and therefore, directed PWs.l and 2 to be summoned and examined as Court witnesses. The learned Sessions Judge gave liberty to the accused to cross examine them further. The learned Sessions Judge came to such a conclusion as seen from the impugned order that the two third party affidavits filed on behalf of the accused, disclosed that in view of the compromise between the accused and PWs. 1 and 2, who are the parents of the deceased, PWs. 1 and 2 did not support the case of the prosecution and subsequently, there was a breach of that compromise. Hence, PWs. 1 and 2 approached the Court seeking permission for their further examination to put-forth the real version with regard to the commission of the offence by these petitioners. The right of the Court to exercise the powers given u/s 311 Cr.P.C. is unrestricted. Therefore, when the trial Court is of the view that the further evidence of these witnesses, PWs. 1 and 2, is essential to the just decision of the case, it does not deserve to be interfered with by this Court under the revision.

The learned Counsel for the petitioner-accused also raised the contention that in a police case, private parties have no right to insist upon the examination/further examination of witnesses and as such, that petition is not maintainable. It is, no doubt, true that the parties have no right to produce the evidence for the prosecution in a police case. But, it is well settled that when the Public Prosecutor does not choose to produce the evidence which may be necessary in the interest of justice, the trial Judge should make liberal use of, his power u/s 311 Cr.P.C. and recall, re-examine or summon any witness whose evidence will be in the interest of justice or for the just decision in the case. In the instant case, the learned Sessions Judge having believed the version of PW1 that himself and PW2 were made to speak falsehood at the instance of the Special Public Prosecutor and the defence Counsel and also in view of the compromise, exercised his discretion and directed PWs. 1 and 2 to be summoned and examined as Court witnesses. There is no limitation on the power of the Court in exercising the discretion under this Section and it can be exercised at any stage of the trial of the case, provided the Court is, bonafide, of the opinion that for the just decision of the case, that step must be taken. In "Mohammad Hussain Umar Kochara v. Dilip Singh", AIR 1970 SC 45, it has been held by the Supreme Court that the Court has inherent power to recall a witness if it is satisfied that he is prepared to give evidence which is materially different from what he had given at the trial. But, if there is no material upon which the Court could be satisfied, it would be entitled to refuse the prayer for recalling the witness.

It is also contended by the learned Counsel for the petitioners that PWs. 1 and 2 were already examined on behalf of the prosecution and the order of the trial Judge to summon them as Court witnesses is irregular. It is true that where a witness has been examined by the prosecution or by the defence, and he is discharged after the conclusion of his statement, but he is recalled at the request of that very party, the witness thereby does not become a Court witness, but he remains the witness of the party which first examined him and his subsequent statement is only in continuation of the earlier statement. Therefore, the trial Court ought to have recalled and examined further PWs.1 and 2 in continuation of their earlier statement as prosecution witnesses and not as Court witnesses as directed under the impugned order.

For the reasons stated above, I do not find any illegality committed by the learned Sessions Judge in allowing the petition to re-examine PWs. 1 and 2 further. But, there is an irregularity committed by the trial Court in directing PWs.1 and 2 to be summoned and examined as Court witnesses. Hence, the impugned order is modified to the extent that PWs. 1 and 2 shall be summoned and examined them further in continuation of their earlier statements as prosecution witnesses.

In the result, the revision case is disposed of with the said direction.