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TMI Blog2023 (10) TMI 1367X X X X Extracts X X X X X X X X Extracts X X X X ..... ight upon the imputations. Section 311 CrPC, of course, does not intend to fill the lacunae in the prosecution s case and cause any serious prejudice to the rights of an accused. The exercise of power under this provision is intended to meet the ends of justice and to gather overwhelming evidence to scoop out the truth. In the case at hand, the family members of the Deceased are the most crucial witnesses to test the veracity of the allegations levelled by the prosecution. Their stand in the examination inchief is diametrically opposite to the one in the cross- examination. The fact that the parents and sister of the Deceased have resiled from their earlier standpoint where they had been found to be agitating vigorously before different forums since the year 2019, implores us to invoke our Constitutional powers under Article 142 read with Section 311 CrPC and direct their recalling for a fresh cross examination after ensuring a congenial environment, free from any kind of threat, psychological fear, or any inducement. This is a case fit for recalling the witnesses (PW 1, PW 4 and PW 5) for their further cross examination to reach an effective decision in the subject trial. The impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd tried to commit rape upon her at the instigation of the father of Respondent No. 1. III. FIR No. 97/2016 was registered under Sections 143, 323, 448, 504, 506, and 149 of IPC at P.S. Vyalikaval, Bengaluru alleging that Respondent No. 1 tried to kill the Complainant with an axe but she managed to escape to the toilet and saved herself. She called the police from inside the toilet and on hearing the sound of the police siren, Respondent No. 1 and his family members ran away. IV. FIR No. 205/2017 was registered under Section 25(1)(B) (B) of the Arms Act of 1959 and Sections 96 and 97 of the Karnataka Police Act of 1963 [Hereafter KP Act ] at P.S. Vyalikaval, Bengaluru, alleging that Respondent No. 1 sent some rowdies to kill the Complainant. The Police later caught those goons along with axes and chilli powder, which they carried along to assault the Complainant. V. FIR No. 50/2019 was registered under Sections 354(B), 341, 323, 427, 504, and 506 of IPC at P.S. Vyalikaval, Bengaluru alleging that Respondent No. 1 along with his childhood friends physically and sexually assaulted the Complainant on 16.06.2019 and also damaged her twowheeler. 5. It is pertinent to note here that due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing in a pool of blood and in a supine position. The Appellant Smt. Munilakshmi, the Deceased s mother, lodged the subject FIR, which was initially registered only under Sections 306 and 498A of IPC. The FIR stated that Respondent No. 1 was coercing the Deceased to consent to divorce as he wanted to marry someone else. It further alleged that Respondent No.1, his family members, and his associates had also previously attempted to kill the Appellant s daughter. 12. Being aggrieved by the non inclusion of offence under Section 302 of IPC in the subject FIR, the Appellant thereafter made another complaint on 25.12.2019, alleging that suspects wearing helmets, etc., used to regularly visit the matrimonial home of the Deceased on the pretext of meeting the resident of the second floor but in actuality they would threaten the Deceased, who was staying on the first floor of that very house, with dire consequences. Respondent No. 1 along with one Prashanth (accused No. 2), and one Jaganatha (accused No. 3) was accused of killing the Appellant s daughter. The investigation in Crime No. 151/2019 was eventually completed, and a final report was submitted on 01.03.2020 against four persons, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, including coercive action be taken to ensure the presence of the witnesses. 15. What has transpired thereafter is quite disheartening, and it pricks the conscience of this Court. Our attention has been drawn to the fact that there was a gap of around 20 days between the examination in chief and the cross examination of the key witnesses, who are none else than the Appellant (PW 1), her daughter Vidhya (sister of the Deceased, PW 4), and Muniraju (father of the Deceased, PW 5). They all have turned hostile and retracted from their earlier statements. B. CONTENTIONS: 16. Learned Counsel for the Appellant, regardless of her contradiction in the cross examination, vehemently contended that the High Court committed a grave error in overlooking the well established principles which guide the Courts to exercise their discretion in the matter of granting or refusing a bail. He urged that prima facie there is sufficient material gathered by the prosecution to indicate the involvement of Respondent No. 1 in a criminal conspiracy hatched for killing his wife. He also made a pointed reference to the complaints alleging gross misuse of concession of bail by Respondent No.1. 17. Learned State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be a mere coincidence. The Appellant has been vigorously pursuing this appeal seeking cancellation of bail given to Respondent No. 1. In her examination in chief, she has specifically named Respondent No. 1 as the main conspirator in the murder of her daughter. Her sudden somersault, therefore, cannot be easily detached from the chain of allegations made against Respondent No. 1 in the past, of influencing the police, hiring goons, repeatedly assaulting the Deceased, and various attempts to take away her life. All these accusations, for the limited purpose of these proceedings, do suggest that Respondent No. 1 has the potential to influence the investigation or the witnesses who were slated to depose against him. The seriousness of allegations levelled against Respondent No. 1 by the Deceased during her lifetime or by the Appellant before the Police or in this appeal ought to be evaluated against this backdrop. 20. This Court undoubtedly has a narrow scope of interference in an order granting bail while exercising its power of judicial review and will be invariably reluctant to interfere in such order even if it has a different opinion. The Courts often grapple with balancing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the grant of bail to Respondent No.1 and an emboldening opportunity for him to win over the witnesses. Respondent No.1, therefore, does not deserve to enjoy the concession of bail at least until all the crucial witnesses are examined. The privilege of liberty extended to him, thus, deserves to be withdrawn for an effective, fair, just and unbiased conclusion of trial. C.1.2 ENSURING A FAIR TRIAL : RECALLING OF WITNESSES 26. A major challenge before this Court is to ensure a fair trial amidst the hostility of witnesses. Undoubtedly, witnesses play a very vital role in bringing justice home, especially in the adversarial system of court trials where the onus lies on the prosecution to prove the guilt of the accused by bringing persons acquainted with the facts before the courts of justice. Their testimony determines the fate of a trial before the court of law, without which the court would be like a sailor in an ocean sans the radar and the compass [Mohd. Ashraf, Peculiarities of Indian Criminal Justice System Towards Witnesses : An Analysis (2018) 26 ALJ 64] If a witness turns hostile for extenuating reasons and is reluctant to depose the unvarnished truth, it will cause irrev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional powers under Article 142 read with Section 311 CrPC and direct their recalling for a fresh cross examination after ensuring a congenial environment, free from any kind of threat, psychological fear, or any inducement. 30. We, thus, find it a case fit for recalling the witnesses (PW 1, PW 4 and PW 5) for their further cross examination to reach an effective decision in the subject trial. 31. We, however, hasten to add that power to recall witnesses under Section 311 CrPC ought to be exercised sparingly and mere hostility by a witness, per se, would not be a sufficient ground to infer misuse of concession of bail. Still further, the observations made hereinabove shall have no bearing on the merits of the pending trial. D. CONCLUSION: 32. In view of the above discussion and without expressing anything on merits, we allow this Appeal with the following directions: (i) the impugned order dated 12.08.2020 is set aside and the bail granted to Respondent No. 1 is hereby cancelled; (ii) Respondent No. 1 is directed to surrender not later than one week. He shall remain in custody till the conclusion of trial or till this Court releases him on bail in changed circumstances; (iii) t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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