Manish vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

The revisionist is an accused for the commission of an offence under Section 376(2)(n) to be read with Section 5(1)/9 of POCSO Act and at present he is facing a Special Sessions Trial being Trial No. 120 of 2018, State v. Manish Chauhan, which is pending consideration before the Special Judge, POCSO. The grievance, which has been raised by the revisionist in the present revision is as against the order dated 31st July 2019, passed by the Court below by virtue of which while exercising its powers under Section 311 of the Code of Criminal Procedure to be read with Section 138 of the Indian Evidence Act, the Court has passed an order directing the re-examination of Dr Barkha, who is a doctor who had examined the victim and who appeared and examined herself as PW5 as she has been directed to appear to be re-examined.

On the initial examination, which has been recorded by her before the Court below apart from the fact that she has disclosed the facts with regard to the respective dates on which the allegation of Section 376 is said to have been committed by the accused person, but as per the statement recorded by her earlier, there was some ambiguity recorded in her statement pertaining to the age or the year of commission of an offence, because as per the finding which has been recorded in the impugned order, the age of the victim as recorded from the date of commencement of Act under Section 376 was projected to be of 17 years of age and the statement of PW5 has also shown that the commission of offence under Section 376 commenced w.e.f. 2017. In order to elucidate the said fact and to remove that ambiguity, which was observed in her statement pertaining to the aforesaid controversy an application Paper No. 41 (kha) was filed on 27th June 2019 by the complainant before the Court below, invoking the provisions contained under Section 311 of the Code of Criminal Procedure for the purposes of re-examining of PW5.

In answer to it, the learned counsel for the revisionist has drawn the attention of this Court to the statement recorded by PW5 on 18th June 2019, wherein he has made reference to question number 26 as well as question number 4 which depicts the age of the victim to be 20 years of age and if it is to be read in correlation to question number 26 which was posed to PW5, she has submitted that there was no document filed by the mother of the victim with regards to the age of the victim. Apart from it, if the question number 19 is taken into consideration in relation to the argument as extended by the learned counsel for the revisionist, PW5 has recorded her statement that the sexual contact between the victim and the accused-revisionist began for the first time from 2017, and the last sexual contact is said to have been made on 21st May 2018.

In order to remove the ambiguity, pertaining to the impact of reference of 17 in the statement recorded by PW 5, whether it relates to the age of the victim or it relates to the date of first commission of the offence by the accused person, an application was preferred before the Court of Sessions Court being paper number 41 (kha). If the powers which are vested with the Court are taken into consideration, particularly, in reference under Section 311 of Cr.P.C. to be read with Section 138 of the Evidence Act, an exclusive power has been vested with the Courts that wherever the Court in the order of examination desires the re-examination of the witnesses or where it thinks that the examination and cross examination must relates to the facts of the particular case and it has to be in consonance to the nature of offence which has been alleged to have been committed by the accused person, the law does not create a restriction that re examination or a direction for re examination of the witnesses cannot be made by the Court. Section 311 of Cr.P.C. reads as under:-

"311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding 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."

Section 138 of the Indian Evidence Act, 1872 reads as under:-

"138. Order of examinations.-Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination.-

The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter."

Similarly, if the implications of Section 311 of Cr.P.C. is taken into consideration, the said provisions gives ample of power to the trial Courts to summon the material witnesses or to examine the person and recall or re examination of a person who has already appeared as witness in order to elucidate or in order to remove any ambiguity in the prior statement recorded by the witness. Thus, there is no legal bar as such in re-examination of witness already examined earlier, the argument which has been extended by the learned counsel for the revisionist is that considering the second statement recorded by PW 5, in fact, there was no ambiguity with regard to the impact of the reference of 17 in the statement recorded by PW 5, whether it relates to the age of the victim or the year from when the offence was commenced to be committed by the accused person. Hence, in the light of the aforesaid argument he contends that since there was a second statement recorded by PW 5, which clarifies the age, as well as, the year of commencement of offence, this Court is of the view that the provision of Section 311 of Cr.P.C. and Section 138 of the Indian Evidence Act, it is absolutely the prerogative of the Court to determine as to whether in the circumstances and the facts of the present case or any particular case whether, at all the statement of PW 5, who is a doctor and an independent witness, she was required to be called upon for re examination in order to better elucidate the matter and to extract more and better facts by re-examination of a witness.

In response to it, the learned counsel for the revisionist has placed reliance on a judgement rendered by the co-ordinate bench of the Allahabad High Court, wherein the Allahabad High Court has observed in a judgement as rendered on 25th July 2019 in C482 Application No. 28677 of 2019, Neeraj v. State of U.P. and Another, wherein an observation has been made to the effect that the invocation of the provisions contained under Section 311 of Cr.PC cannot be invoked to recall a witness in order to enable the witness to resile from his or her previous statements. The ratio as propounded therein is to preposterous to be considered at this stage, in the present case because it is absolutely an anticipation or too hypothetical on part of the revisionist to contend that re examination of witness, as proposed by the impugned order of PW 5, intends to give an opportunity to PW 5 to resile away from the statement already recorded by her before the Court below is without any basis and without any material basis its merely a presumption drawn by him, even before the actual re-examination had taken place.

Apart from it, in case if on a re-examination if PW 5 records a statement which runs contrary to the earlier statements recorded by PW5, during the trial, it will always be in the benefit of the accused person at the time when after the final adjudication take place or when he puts the judgement under challenge in an appeal, hence it is absolutely too pre-mature and without any foundation that the impugned order attempts to give an opportunity to PW 5 to resile away from her earlier statements which already stands recorded. That could always be a matter to be argued finally if at all it is taken place and there is resiling from the earlier statement. But this opinion cannot be drawn even before the actual re-examination, is done.

It has also been contended by the learned counsel for the revisionist that there may be a possibility that PW5 may be won over by the complainant and may record a contrary statement which has already been recorded by her before the trial Court. This argument too is only an apprehension and based on the fiction of the revisionist and that too without any basis. He further places reliance on a judgement reported in 2016 (2) Law Herald 1742, Pratibha Mehra v. State of Haryana and another, whereby the co-ordinate Bench of Punjab and Haryana High Court, while considering the impact of Section 311 of Cr.P.C. in a case under Section 376 of IPC was dealing with the situation of recalling of a witness for his re examination, the Court had dealt with the impact of Section 311 of Cr.P.C., in accordance with the fact of that particular case where recalling of the witness was negative by the High Court by the order under challenge before the Court which consequently resulted into the dismissal of the Criminal Miscellaneous Application by the High Court denouncing the necessity to re-examine the witnesses under the circumstances as it was prevailing in the said case which was that in the said case complainant was unable to show that the evidence now sought to extracted and brought on record was necessary for the case.

This Court is of the view that once the law itself vests the power with the Court dealing with the trial of an offence, particularly, the power which has been vested with it under Sections 311 of Cr.P.C. and 138 of the Indian Evidence Act, its gravity, the necessity to re examine of the witnesses, its impact on the trial, are all the factors, which lie within the ambit of consideration by Court, its in the exercise of discretion of the trial Court for considering the necessity of re examination of the witnesses who have already been examined. The possibility of his or her being won over all possibility or recording a contradictory statements cannot be a reason for declining to re-examining of witnesses by invoking Section 311 of Cr.P.C. to be read with Section 138 of the Indian Evidence Act, more particularly, in the instant case when there is a controversy to be resolved as to with regards to reference of 17, which has been recorded in the statement of PW 5, whether it relates to the year of commencement of offence or it relates to the age of the victim which was sought to be clarified by the Sessions Court.

Under these circumstances, since this case is altogether being based on a different factual backdrop, then what was refer to in the judgements relied by the learned counsel for the revisionist, this Court is of the view that after considering the judgement of the learned trial Court, the trial Court too has felt it necessary that in order to avoid any future complications pertaining to the statement recorded by PW 5, her re-examination was eminent in view of the provisions contained under Section 138 of the Indian Evidence Act, thus the application was rightly allowed by the Sessions Court for re-examination of PW 5 to extract and elucidate the earlier statements recorded by her. Thus recalling of a witness in the instant case and the circumstances as prevailing herein cannot be faulted of and thus the impugned order dated 31st July 2019 under challenge, this Court is of the view that it does not suffer from any apparent error of law. Consequently, the revision lacks merit and the same is dismissed. However, there would be no order as to cost.