2013 (12) TMI 1744 - SC - Indian Laws

Summary

Issues Involved:
1. Incorrect version stated by PW-18 during Test Identification Parade.
2. Role and rights of the informant/victim in criminal proceedings u/s 301 and 311 of Code of Criminal Procedure (CrPC).
3. Powers of the trial court to recall and re-examine witnesses u/s 311 CrPC.

Summary:

Issue 1: Incorrect Version Stated by PW-18
The appeal concerns an alleged incorrect version stated by PW-18, the Sub-Divisional Judicial Magistrate, during the Test Identification Parade on 05.01.2009. The Appellant, a Catholic Nun, claimed she was brutally assaulted and gang-raped by the accused. PW-18's testimony conflicted with Exhibit-8, the official record of the identification parade, leading to a serious grievance for the Appellant. The Appellant contended that the prosecution failed to confront PW-18 about this discrepancy, which could prejudice the case.

Issue 2: Role and Rights of the Informant/Victim u/s 301 and 311 CrPC
The High Court ruled that the informant had a limited role in the trial and could not file a petition to recall witnesses u/s 301 CrPC. However, the Supreme Court emphasized that the trial court should have considered invoking Section 311 CrPC to rectify the error. The Court noted that the victim, being the actual sufferer, should have her grievances addressed adequately. The Court highlighted the participatory role of the trial court in ensuring justice and not merely acting as a passive observer.

Issue 3: Powers of the Trial Court to Recall and Re-examine Witnesses u/s 311 CrPC
The Supreme Court criticized the trial court and the High Court for failing to use their powers u/s 311 CrPC to recall PW-18 and correct the erroneous testimony. The Court emphasized that the trial court should have taken proactive steps to ensure that the evidence was accurate and just. The Court referred to various precedents, including Zahira Habibullah H. Sheikh v. State of Gujarat, to underline the importance of the trial court's active role in criminal proceedings.

Conclusion:
The Supreme Court set aside the orders of the trial court and the High Court, directing the trial court to recall PW-18 and allow the prosecutor to cross-examine him regarding the conflicting statements. The trial court was also instructed to permit the Appellant to file written arguments u/s 301 CrPC. The trial court was directed to conclude the proceedings expeditiously within three months. The appeal was allowed on these terms.