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TMI Blog2016 (3) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... uggestions on material aspects, which are crucial for the defence in a trial inter alia for an offence under Section 302 IPC, although the accused were represented by battery of lawyers with Sh. R.S. Hooda, Advocate being the lead lawyer. The accused-petitioners are charged with heinous offences including under Section 302 IPC and it was stressed that the purpose of recalling is not to set up a new case or make them turn hostile but only to have a proper defence as it is to be judicially noticed that for lack of proper suggestions by the defence to the prosecution witnesses, the learned trial Courts at times tend to reject the raised defence on behalf of the accused. Some of such omissions and suggestions by way of illustration have been spelt out in the body of the petitions and some are stated to be withheld for avoiding any prejudice to the defence, nevertheless the stated purpose is not to render the prosecution witnesses hostile to the case of prosecution. Hence such inadvertent omissions and lack of suggestions have to be accepted to be bonafide and constituting a valid reason requiring the approach of the Court to be magnanimous in permitting such mistakes to be rectified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the accused-petitioners (in both the petitions) were nominated as accused in aforesaid FIR No.184 dated 18.07.2012 on account of occurrence on 18.07.2012 in the premises of the Maruti Suzuki plant at Manesar resulting into injuries to the official of the company and death of one Mr. Avnish Dev, General Manager. The petitioners (in both the petitions) were arrested in the month of July/August 2012. The investigating agency on conclusion of the investigations filed a challan dated 08.10.2012 against 148 accused persons including the petitioners (in both the petitions). The charges were framed on 22.08.2013, inter alia, under Section 302 of Indian Penal Code. The evidence of the prosecution commenced on 21.01.2014 and was concluded on 02.05.2015. When the case was at the stage of recording of defence evidence the application dated 30.11.2015 (P-4) under Section 311 read with Section 231 (2) Cr.PC was instituted on behalf of the 12 accused persons-petitioners (in CRM-M No.482 of 2016) seeking recalling of the eight prosecution witnesses out of total 102 examined witnesses, namely PW-1 Vikram Verma, PW-2 Vikram Kazanchi, PW-3 Pradeep Kumar Roy, PW-5 Birendra Prasad, PW-8 Salil Bihari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel for the petitioners have contended that the reasons for declining the recalling of the witnesses are unsustainable in law and, therefore, impugned orders dated 16.12.2015 passed by the learned trial Court are liable to be set aside in view of the following:- (a) that the nature and extent of the power vested in the courts under Section 311 Cr.PC to recall the witnesses is couched in the widest possible terms and is not limited either with regard to the stage at which the powers of the Courts should be exercised or with regard to the manner in which it should be exercised, but is to be guided by what it considers absolutely necessary/ essential for the just decision of the case. Therefore, the reason for declining that the application were moved at a belated stage is untenable in law. (b) that the Hon'ble Supreme Court vide order dated 17.02.2014 (P-8) had directed the learned trial Court to dispose of the trial as expeditiously as possible in the light of the fact that the bail applications of the accused were not being entertained. The trial Court was further directed to examine all the witnesses by 30.04.2014, while permitting the accused-petitioners to pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material for the proper defence of the accused charged inter alia for an offence under Section 302 IPC, that would neither delay the trial nor prejudice the prosecution. The applicants/petitioners are not seeking to raise any fresh grounds in defence but are merely seeking to correct certain errors committed during cross examination, and as such would not amount to filling up of any lacunae in defence. It was also stressed that there is absolutely no effort to turn the testimonies of the recalled witnesses hostile to the case of the prosecution. In support reliance is placed upon the decisions of the Hon'ble Supreme Court reported as Rajendra Prasad Vs. Narcotic Cell (1999)6 SCC 110, Raghunandan Vs. State of U.P. AIR 1974 SC 463, P. Chhagan Lal Daga Vs. M. Sanjay Shaw (2003)11 SCC 486, P Sanjeeva Rao Vs. State of Andhra Pradesh (2012) 7 SCC 56. 6. On the other hand learned State Counsel assisted by Counsel for the Complainant has argued that the main thrust for recalling of the witnesses as per the application is the illness of the previous defence counsel Sh. R.S. Hooda, Advocate, which has been rightly dealt with by the learned trial Court while rejecting the application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either in producing relevant materials or in eliciting relevant answers from the witnesses. The mistakes or laches during conduct of a trial cannot be understood as a lacunae which a court cannot fill up. The relevant para 8 and 12 of the judgment are as under:- 8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. 12. We cannot therefore accept the contention of the appeal as a legal proposition that the Court cannot exercise power of resummoning any witness if once that power was exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer PW-11 was examined by the prosecution. Since PW-11 had been examined, the application was moved. It was contested by the prosecution that the cross examination of PW-1 and PW-2 had been recorded as Nil and there was nothing on record to show that a right to cross examine PW-1 and PW-2 at a later point of time was reserved. The application was rejected by the trial Court in view of the stand of the prosecution while also holding that recall of the said witnesses after three and a half years would prejudice the prosecution. The Hon'ble High Court upheld the order in revision. The Hon'ble Supreme Court allowed the appeal of the accused while setting aside the orders passed by both the aforesaid Courts. The Hon'ble Supreme Court by examining the entire case law held that the object underlying Section 311 was to prevent failure of justice on account of a mistake of either party to bring on record valuable evidence or leaving any ambiguity in the statement of the witnesses. Grant of fairest opportunity to the accused to prove his innocence is the object of every fair trial. A possible prejudice to the prosecution on account of delay in recalling of the witness is not ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine any such person. 17.4 The exercise of power under Section 311 Cr.PC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5 The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case, make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice. 17.6 The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7 The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case. 17.8 The object of Section 311 Cr.PC simultaneously imposes a duty on the court to determine the trugh and to render a just decision. 17.9 The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace open to the public on the disclosure statement also could not be held to be not proved in the face of other evidence on record. The principal arguments of the appellants that all the eye witnesses had turned hostile and therefore, the credibility of their testimonies was doubtful, was rejected. It was held that the witnesses were recalled after one year of their earlier testimonies supporting the prosecution, and on account of they having been won over either by money, my muscle power, by threats or intimidation had subsequently turned hostile. In this background of facts, the Hon'ble Court was of the view that witnesses should not be recalled after lapse of more than one year since their earlier testimonies. 9. After giving thoughtful consideration to the rival contentions of the parties in the backdrop of the facts of the cases, this Court is persuaded to accept the plea of the accused-petitioners for recalling of the named witnesses. We are guided by the clearly laid down legal principles, as reproduced here above, for invoking the provisions under Section 311 Cr.PC for recalling of the witnesses for further cross examination. Applying those principles to the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not circumscribed by the stage at which such a request is made but is guided by what is essential for the just decision of the case. No doubt speedy trial is essential in cases involving heinous crimes, however, nothing has been shown on record that the Hon'ble Supreme Court has specifically laid down a date by which the trial is mandated to be concluded. The order at P-8 is only in the context of the right of the accused to seek bail. The reliance by the trial Court on AG Vs. Shiv Kumar Yadav's case ( supra ) and Nisar Khan's case ( supra ) is also misplaced in the facts of the present cases. In the first case, the trial was for offence of rape and the defence was seeking the recall of all the prosecution witnesses amounting almost to a denovo trial without any regard to the harassment and plight of the young victim. In the latter case, the defence had succeeded in its purpose of turning the already examined witnesses to be hostile to the case of prosecution by recalling them after a period of one year. In the present case the facts are clearly distinguishable as aforesaid. 10. In view of the foregoing discussion, both the aforesaid petitions are allowed, the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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