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TMI Blog2013 (12) TMI 1744X X X X Extracts X X X X X X X X Extracts X X X X ..... violence in the entire district. The Appellant and another Jesuit father by name Thomas Chellan and some others who were residents of Jesuit Home called 'Divyajyoti Pastoral Centre', Kanjamendi of district Kandhamal, fearing attack by the unruly mob took shelter in the house of one Prahallad Pradhan of village Kanjamendi on 24.08.2008. 4. On 25.08.2008, according to the Appellant, around 1 p.m. a mob of about 40 to 50 persons came to the residence of the said Prahallad Pradhan, dragged her and other priests to the road while some of the members of the mob molested her and also brutally assaulted her. The Appellant was stated to have been dragged to a nearby building called 'Jana Vikash' where the 8th accused, Respondent No. 9 herein, alleged to have raped her while the other accused aided for the commission of the said offence apart from molesting her. 5. The Appellant was stated to have been subsequently handed over to the Block Development Officer of K. Nuagaon who in turn produced the Appellant and the Jesuit father Chellan to the Inspector In-charge of Baliguda Police Station for necessary action. Thereafter, the Appellant filed her complaint on 26.08.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the alleged overt act of slapping, pulling of the saree worn by her and squeezing of the breasts nothing more was committed, it was imperative for the prosecution to have confronted PW-18 with particular reference to Exhbit-8 in order to make the recording of the evidence without any ambiguity or else it would seriously prejudice the case of the prosecution and the whole grievance of the Appellant in having preferred the complaint as against the accused would be frustrated. The learned senior Counsel further pointed out that when the Appellant was cross-examined, she specifically refuted the above version of PW-18 as under in paragraph 26: ... It is not a fact that I stated before the S.D.J.M. Cuttack while identifying accused Santosh Kumar Patnaik that the said accused had given me a slap, pulled my saree and squeezed my breast and he did not commit any other offence. It is a fact that I did not state before the Magistrate when I identified accused Santosh @ Mitu Patnaik that the said accused sat on my thighs and raped me on the date of occurrence at Jana Vikash Kendra..... 10. It was in the above stated background, according to the Appellant, she approached the Special Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have ensured that no part of the evidence was allowed to be placed that would mislead the Court or which totally conflicts with the document, the author of which is the witness himself. The learned senior Counsel submitted that in the light of the various decisions of this Court on interpretation of Section 301 read along with Section 311 of Code of Criminal Procedure and also on the locus of the Appellant as a victim to seek for appropriate steps to be taken to rectify such grave error in the recording of evidence, submitted that the learned trial Judge, as well as the High Court, committed a serious error of law. 13. The learned senior Counsel submitted that once the Appellant brought to the notice of the learned Special Public Prosecutor and the learned trial Judge such an error apparent on the face of the record, having regard to the enormous powers vested with the learned trial Judge Under Section 311 Code of Criminal Procedure appropriate steps should have been taken to correct the errors by directing the Special Public Prosecutor to confront PW-18 on the particular statement by recalling him. The learned senior Counsel, therefore, contended that the failure of the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice. At the very outset, however, we must state that whatever views which we express in the judgment are mainly pertaining to the nature of documentary evidence as recorded prior to the examination of PW-18 and PW-25, as well as, the oral evidence in the course of their examination before the trial Court. 17. Having perused the said evidence with particular reference to the issue brought to the notice of this Court, we are of the firm view that the inability of the trial Court in failing to take appropriate action as and when it was brought to its notice about the fallacy in the oral version, would certainly cause a serious miscarriage of justice, if allowed to remain. Unfortunately, in our considered view, the High Court appears to have adopted a very casual approach instead of attempting to find out as to the appropriate procedure which the trial Court should have followed in a situation like this. The High Court also committed a serious illegality in merely stating that Under Section 301 Code of Criminal Procedure there is no scope for a victim as a private party to take any effective step to rectify a serious fallacy committed by a statutory witness who is supposed to mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if not more, the duty and responsibility of the Court to be alive and alert in the course of trial of a criminal case and ensure that the evidence recorded in accordance with law reflect every bit of vital information placed before it. It can also be said that in that process the Court should be conscious of its responsibility and at times when the prosecution either deliberately or inadvertently omit to bring forth a notable piece of evidence or a conspicuous statement of any witness with a view to either support or prejudice the case of any party, should not hesitate to interject and prompt the prosecution side to clarify the position or act on its own and get the record of proceedings straight. Neither the prosecution nor the Court should remain a silent spectator in such situations. Like in the present case where there is a wrong statement made by a witness contrary to his own record and the prosecution failed to note the situation at that moment or later when it was brought to light and whereafter also the prosecution remained silent, the Court should have acted promptly and taken necessary steps to rectify the situation appropriately. The whole scheme of the Code of Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -18 having been brought to its knowledge should have examined the scope for invoking Section 311 and set right the position. Unfortunately, as stated earlier, the trial Court was in a great hurry in rejecting the Appellant's application without actually relying on the wide powers conferred on it Under Section 311 Code of Criminal Procedure for recalling PW-18 and ensuring in what other manner, the grievance expressed by the victim of a serious crime could be remedied. In this context, a reference to some of the decisions relied upon by the Counsel for the Appellant can be usefully made. 22. In the decision reported in J.K. International (supra), this Court considered the extent to which a complainant can seek for the redressal of his grievances in the on going criminal proceedings which was initiated at the behest of the complainant. Some of the passages in paragraphs 8, 9, 10 and 12 can be usefully referred to which are as under: 8. ... What is the advantage of the court in telling him that he would not be heard at all even at the risk of the criminal proceedings initiated by him being quashed, it is no solace to him to be told that if the criminal proceedings are quas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence-collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a Counsel for the defence is a liability to the fair judicial system, and courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. (See Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble.) (Emphasis added) 24. The said decision was also subsequently followed in a recent decision of this Court in Sidhartha Vashisht alias Manu Sharma (supra), wherein one sentence in paragraph 188 is relevant for our purpose, which reads as under: 188. It is also important to note the active role which is to be played by a court in a criminal trial. The court must ensure that the Prosecutor is doing his duties to the utmost level of efficiency and fair play. This Court, in Zahira Habibulla H. Sheikh v. State of Gujarat, has noted the daunting task of a court in a criminal trial while noting the most pertinent provisions of the law.... (Emphasis added) 25. In one of the earlier decisions of this Court in Mohanlal Shamji Soni (supra), wherein Section 540 of Code of Criminal Procedure of 1898 which corresponds with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paragraph 8, this Court has pointed out as to the duty of the Criminal Court to allow the prosecution to correct such errors in the interest of justice. Paragraph 8 of the said judgment reads 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. (Emphasis added) 28. On behalf of the 9th Respondent, Mr. Rana Mukherjee, Learned Counsel placed reliance upon the decision in Shiv Kumar (supra). By relying upon the said decision the learned Counsel contended that the complainant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate relied upon the decision in Umar Mohammad and Ors. v. State of Rajasthan (2007) 14 SCC 711, in particular paragraph 38 of the said decision, and contended that even by invoking Section 311 of Code of Criminal Procedure the Court cannot come to the aid of the Appellant. On a reading of paragraph 38, we do not find any scope at all to apply the ratio laid down in the said decision to the case on hand. That was a case where PW-1 who was examined in Court in July 1994 later on filed an application in May 1995 stating that five accused persons named in the case were innocent and, therefore, they should be discharged by relying upon Section 311 of Code of Criminal Procedure. The said application was rejected by the trial Court, as well as by the High Court in revision. Finding that 311 of Code of Criminal Procedure has no application to the fact of the said case, this Court held that PW-1 having been won over by virtue of the fact that the application came to be filed after nine months of his chief examination, there was absolutely no bona fides and the rejection of the application was therefore well in order. 31. Having noted the various decisions relied upon by the learned Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Prasad Yadav v. State of Bihar and Anr. AIR 2013 SC 3081, wherein in paragraph 14 the law has been stated as under: 14. A conspicuous reading of Section 311, Code of Criminal Procedure would show that widest of the powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression any has been used as a pre-fix to court , inquiry , trial , other proceeding , person as a witness , person in attendance though not summoned as a witness , and person already examined . By using the said expression any as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case..... Therefore, a reading of Section 311, Code of Criminal Procedure and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of reexamination at the desire of any person Under Section 138, will have to necessarily be in consonance with the prescript ..... X X X X Extracts X X X X X X X X Extracts X X X X
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