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TMI Blog2008 (10) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code of Criminal Procedure, 1973 (in short `Code'). 3. A brief reference to the factual aspects would suffice: The respondent Nos. 2 and 3 are facing trial for the commission of offences punishable under Sections 147, 452, 364, 302/149 and 201/149 of the Indian Penal Code, 1860 (in short `IPC'). Various witnesses were examined from time to time including Nandaram (PW-5) and Bhopalaram (PW-3). Nandaram was examined and cross-examined on 21st November, and Bhopalaram was examined and cross-examined on 7th June, 2006. One of the accused Shrikant was claimed to be a minor and because of that he was tried before the Children's Court. In that case also Bhopalaram was examined as a witness on 9th January, 2007. In his eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by the petitioners under Section 311 Cr.P.C. The court should have recalled Bhopalaram and Nandaram for cross examination afresh by invoking powers under Section 311 Cr.P.C. 4. Learned Counsel for the appellant submitted that the High Court ought to have accepted the prayer as made because the parameters governing Section 311 of the Code had no application to the facts of the case. Learned Counsel for the State supported the stand of the appellant. Learned Counsel for the respondent Nos. 2 and 3 submitted that ultimately the best evidence has to be brought on record for doing justice and the High Court's order, therefore, does not suffer from any infirmity. 5. Reference may be made to Section 311 of the Code which reads as follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. 7. 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 valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t were minors and their case was tried by the Juvenile Court. PW 2 Mokam Singh 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, PW-2 Mokam Singh 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. 6. In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined in-chief ..... X X X X Extracts X X X X X X X X Extracts X X X X
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