Sachin @ Sachu vs State of Haryana

Sabina, J.—Petitioner has filed this petition u/s 401 of the Code of Criminal Procedure, 1973 (in short Cr. P.C.) challenging the order dated 18.07.2013 whereby application moved by the petitioner u/s 311 Cr. P.C. for recalling PW-9 Dr. Sandeep for further cross-examination was dismissed. I have heard learned counsel for the petitioner and have gone through the record available on the file carefully.

Section 311 Cr. P.C. reads as under:-

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.

Thus, as per above provision, Trial Court has ample power to summon a witness for further cross-examination, if it is necessary for the interest of justice.

The Trial Court while dismissing the application moved by the petitioner u/s 311 Cr. P.C. has held as under:-

After going through the circumstances of the case and arguments advanced on behalf of the learned counsel for the parties, it emerges that accused/applicant Sachin was declared proclaimed offender in this case when it was fixed for defence evidence, if any and arguments whereas remaining three accused namely Vicky, Kalia alias Deepak and Nitin had been held guilty and convicted vide judgment dated 15.04.2011 by the then learned Sessions Judge, Rohtak. The prosecution has placed much reliance upon the testimony of PW 12 Balwant who was injured as well as eye witness of the occurrence and from his testimony, it emerges that he had attributed the part played by the accused as well as identified them. Through the cross-examination of PW 9 Dr. Sandeep as to whether deceased Rakesh was fit to disclose the fact as to by whom the injury was caused to him is of no relevance in the present set of circumstances of the case because the case of the prosecution is neither based upon the dying declaration nor on the information supplied by Rakesh, deceased rather the case is based upon the direct eye witness account given by PW 12 Balwant who is injured eye witness. As such, the application is totally whimsical and has been filed with ulterior motive to further delay the disposal of the case which relates to the occurrence took place in the year 2008. Resultantly, the present application u/s 311 Cr. P.C. preferred by accused/applicant Sachin alias Sachu being devoid of merit is hereby dismissed. Papers be tagged with the main trial case file.

The reasons given by the Trial Court while dismissing the application moved by the petitioner u/s 311 Cr. P.C. for summoning PW 9 Dr. Sandeep for further cross-examination are sound reasons. PW 9 was duly cross-examined by the defence counsel on 29.07.2009. The other accused who were facing the trial have since been convicted by the Trial Court. Petitioner had absented during trial at the stage of recording of defence evidence. Now the petitioner has surrendered before the Trial Court to face the trial. Since PW 9 Dr. Sandeep was cross-examined by the counsel for the petitioner, no ground for recalling the said witness is made out for further cross-examination. Dismissed.