HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRR No. 58/2012, IA Nos. 99001/2014 and 52/2012
Date of order: -03.11.2018
Masoom Hussain Shah
Vs.
State and ors.
Coram:Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. B.S. Salathia, Sr. Advocate with Mr. Sarfraz Shah, Advocate.
For respondent (s) : Mr. Amit Gupta, Dy. AG.
1. Through the medium of the instant Criminal Revision Petition, petitioner seeks quashment/setting aside of the impugned order dated 11th August, 2012, passed by the learned Principal District and Sessions Judge, Jammu under Section 540 of the Cr.P.C, by virtue of which prosecutrix/ respondent No. 4 herein has been recalled as a witness, whose statement was already recorded before the Court on 26th May, 2012 in a free and fair manner and without any pressure, force or coercion. The petitioner has also prayed that the statement of the respondent No. 4 may kindly be deferred, which has been fixed on 27th August, 2012 in the Court of learned Principal District and Sessions Judge, Jammu till the disposal of Revision Petition.
2. The factual matrix of the case is that a false and frivolous FIR was lodged against the petitioner in Police Station Janipur, Jammu on 01- 12-2011 under Section 376, 452 and 323 RPC and thereafter, the Challan was presented before the Court on 23rd of January, 2012, charges were framed on 23rd of January, 2012. After framing of charges, the Learned Court below fixed the calendar date for recording the statement of the prosecutrix. From the date of framing of charges till the date of recording the statement of the prosecutrix, more than 21 dates were fixed by the learned Court below. Finally, on 26th of May, 2012, the prosecutrix fairly made the statement before the Court under Section 164 Cr.P.C in Camera and out rightly denied the allegations and charges framed against the accused. The prosecutrix was declared hostile and she was also later on cross- examined by the learned Public Prosecutor. In the cross-examination, she fairly stated that the petitioner has neither committed any offence nor she knows the petitioner. After period of two months, the prosecutrix moved an application through Public Prosecutor under Section 540 Cr.P.C. The application was strongly opposed by the petitioner by way of objections and also on the basis of record annexed.
3. The petitioner has assailed the aforesaid impugned order on the following grounds:-
i) That the order impugned dated 11-08.2012 is against the facts and the record annexed by the petitioner in the objections filed in the application moved by the prosecutrix through Learned Public Prosecutor.
ii) That the Court below has not appreciated the facts of the case, it is relevant to mention here that the conduct of the prosecutrix was fairly explained in the objections wherein one of the occasion the prosecutrix has torn apart the warrant and even tried to chew and shallow a part of it. Accordingly the authorities of Police Station, Janipur entered a report with respect to offence under Section 173 of RPC being a report of 36 of Daily Register dated 19-05- 2012 and a copy of the same was produced before the Court of Session Judge, Jammu along with the report with respect of non-execution of warrant.
iii) That the Court below has taken the lenient view and on dated 22.05.2012 by canceling the warrant issued against the prosecutrix who herself was present before the Court. The prosecutrix was directed to put her present on 24th May, 2012 as the calendar was fixed for three days. On 24th May, 2012, she was restrained by her husband to approach the Court for recording her statement. The prosecutrix was threatened by her husband that if she gives any statement in the Court, she has to face the fatal consequences.
iv) That on 25th of May, 2012 the prosecutrix in her full senses approached the Court and openly stated before the Court that she has been threatened by her husband to make any statement before the Court, as such the prosecutrix seeks kind indulgence of this Hon’ble Court to provide her protection so that she made a fair statement before the Court.
v) That the Court below entertained the application of prosecutrix and directed the learned Chief Judicial Magistrate to provide security to prosecutrix so that she gave fair statement before the Court without any pressure, force, or coercion. On 25th May, 2012 by the order of Chief Judicial Magistrate, Jammu, prosecutrix was sent to women shelter house, namely, Neha Ghar at Kachi Chawni with the directive of Officer Incharge thereof to make arrangement of safe stay of the applicant on 25.05.2012. On 25.05.2012, respondent No.3 was directed to make safe travel of the petitioner before the Hon’ble Court of Learned Principal District and Sessions Judge, Jammu to Neha Ghar and further for her safe travel from said place to the Court of Session for recording her evidence on 26-05-2012. It is pertinent to mention here that she remained there in the safe custody of Court and thereafter, Neha Ghar and till the time of custody, she was neither allowed to meet any person nor was she allowed to go outside. In such peculiar circumstances, the grounds taken by the Public Prosecutor in the application under Section 540 Cr.P.C that the prosecutrix was under the influence of drugs is totally wrong and is concocted. Copy of the order of Learned Chief Judicial Magistrate, Jammu is enclosed herewith and marked as Annexure. ‘G’.
vi) That the prosecutrix has made the statement in a free and fair manner without any influence of force, pressure and coercion and she was even questioned by the Learned Principal Sessions Judge, Jammu that whatever she is deposing before the Court on her own accord or on the influence of any other person. She openly made the statement that she is giving the true statement and whatever has been stated in the FIR and the statement made under Section 164-A Cr.P.C is totally wrong. The prosecutrix was also cross-examined by the Learned Public Prosecutor in a cross-examination, she fairly stated that she had lodged FIR under the influence of her husband and she was also restrained by him to give any statement before the Court. Copy of the statement is already enclosed.
vii) That the Learned Court below has not appreciated the fact that she has herself approached the Court, seeks the protection, she remained in the safe custody by the order of the Court. Thereafter, she made a statement before the Court in Camera and no question of any influence by any person arose. Therefore, the grounds taken in the application that she was under the influence of drug is totally wrong and is not worth appreciating.
viii) That the Learned Court below has neither appreciated the facts nor appreciated the law. Section 540 Cr.P.C has to be taken into consideration with great care and caution and before allowing any application under Section 540 Cr.P.C, the court has to see the grounds of filing this application, if the Court observes that the grounds taken in the application and intention of filing the application.
4. I have considered the rival contentions. Counsel for petitioner has reiterated all grounds taken in petition, whereas counsel for State has supported the order impugned.
5. From the perusal of file it is evident that victim who was 34 years old at the time incident, has already got her statement record before trial court on 26/5/2012, wherein she has stated that she does not know accused; accused has done nothing with her; accused neither abducted her nor raped her .She was declared hostile and was cross examined by PP, but nothing incriminating was found against accused. In this way she has retracted her statement given under section 164-A Cr.P.C. She also denied the contents of seizure memos. It is worthwhile to mention here that victim was identified at the time of giving statement before court by her husband and PW Dr. Jotishima. Thereafter, it appears that PP filed an application u/s 540 Cr.P.C on behalf of victim that she be recalled again for giving fresh statement. She stated that her previous statement was recorded under force and threat to life and under the influence of drug; court below after inviting objections allowed the application.
6. I have given my thoughtful consideration to whole aspects of the matter and law on the point.
7. Section 540 reads as under :
“540. Power to summon material witness, or examine person present.
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-
examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”
8. Bare perusal of this section, it is evident that it consists of two parts.
First part gives discretionary power to court in summoning any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined. Second part of section is mandatory and it cast a duty upon the court to call and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re- examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. In similar circumstances of case, the apex court in similar set of circumstances ,wherein witness stated nothing during trial at first instance ,but later on moved an application for recording his statement on the ground that he was given threat, gas held as under:-
9. In Rajaram Prasad Yadav vs. State of Bihar & Anr., reported in AIR 2013 SC 3081 (decided on 4 July, 2013), Hon’ble Apex Court held as under:-
“22. ……………………………………….
15. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardized. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. (Vide Talab Haji Hussain v. Madhukar Purshottam Mondkar & Anr., AIR 1958 SC 376; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC 1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P. & Anr., (2011) 8 SCC 136; and Sudevanand v. State through C.B.I. (2012) 3 SCC 387.)”
23. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. 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.
e) 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.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) 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.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) 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 considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that 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.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.
24. Keeping the above principles in mind, when we examine the case on hand, at the very outset, it will have to be stated that the High Court, while passing the impugned order has completely ignored the principal objectives with which the provision under Section 311 Cr.P.C. has been brought into the statute book. As rightly argued by the learned counsel for the appellant, at the foremost when the trial was very much in the grip of the trial Court, which had every opportunity to hear the appellant, the State, as well as the second respondent, had not even bothered to verify whether the appellant, who was facing criminal trial was impleaded as a party to the proceedings in the High Court. A perusal of the order discloses that the High Court appears to have passed orders on the very first hearing date, unmindful of the consequences involved. The order does not reflect any of the issues dealt with by the Learned Sessions Judge, while rejecting the application of the respondents in seeking to re-examine PW-9, the second respondent herein. Though orders could have been passed in this appeal by remitting the matter back to the High Court, having regard to the time factor and since the entire material for passing final orders, are available on record and since all parties were before us, the correctness of the order of the Sessions Judge dated 18.11.2009, can be examined and final orders can be passed one way or the other in the present criminal appeal itself.
25. With that view, when we examine the basic facts, we find them as noted by the learned trial Judge being indisputably contrary to the complaint preferred by the second respondent on 8.7.1999, in the police station in case No. 71/1999, wherein offences under Section 324/307/34 IPC were reported alongwith Section 27 of the Arms Act. Based on the report of the doctor, the chargesheet came to be filed bearing No.127/99, dated 31.10.1999, under Sections 324/307/34 IPC and no charge under Section 27 of the Arms Ac was laid. The said case was put to trial and parties were participating. In the course of the trial, the turn of examination of PW- 9, the second respondent came on 16.3.2007, nearly after eight years from the date of occurrence. Second respondent made a categorical statement in his evidence that he never made any statement to the police nor was he beaten on the date of occurrence, nor was he hit by any bullet shot. Further he made a clear statement that the injury sustained by him was due to the fall into the hole dug for constructing a latrine, where some instruments caused the injury sustained by him. He also made a categorical statement that his sons PWs-4 and 5, Babloo and Munna Kumar, were not present at the place of occurrence since one was staying in a hostel in Hulasganj and the other was at Ranchi on the date and time of occurrence, namely, on 07.07.1999, at about 5 p.m. While the said version of the second respondent was stated to have been recorded by the Court below on 16.3.2007, and the evidence of the prosecution was stated to have been closed on 4.4.2007, the defence evidence seem to have also commenced.
26. In that scenario, the second respondent filed the present application under Section 311 Cr.P.C. on 24.8.2007, i.e., nearly after five months after his examination by the trial Court. While filing the said application, the second respondent claimed that his evidence tendered on 16.3.2007, was not out of his own free will and volition, but due to threat and coercion at the instance of the accused persons, including the appellant. It was contended on behalf of the second respondent that the accused persons posed a threat by going to the extent of eliminating him and that such threat was meted out to him on 15.3.2007, when he was kidnapped from his wheat field by the accused, along with two unknown persons.
27. The trial Court having examined all the above factors in its order dated 18.11.2009, has held as under:
“….Either at the time of his evidence in Court or subsequent to his evidence he never made any complaint to the court or any other officer viz. the C.J.M. or any police officer that accused persons had yielded any pressure upon him to turn hostile to the prosecution and to give a go by to the prosecution case. He has also argued that he did not also file any affidavit or case in this regard. Rather when on the basis of the information dated 30.5.2007 given by the accused Bindeshwar Yadav Khizersarai Police Station case No.78/2007 dated 7.6.2008 was registered by the police the informant Suresh Prasad has filed this petition and has also got the similar petition filed through the Additional Public Prosecutor which has got no legs to stand and the same is fit to be rejected. He also filed a photocopy of the FIR to Khizersarai Police Station case No.78/2007 in support of his argument.”
28. After noting the above submissions made on behalf of the accused, the trial Court held as under:
“….After the evidence of the informant, Suresh Prasad (PW-9) on 16.03.2007 the Court of Addl. Sessions Judge, F.T.C.-5 closed the evidence of prosecution on 04.04.2007 after giving opportunity to the learned Addl. P.P. to produce the remaining witness on 26.03.2007 and 04.04.2007 which he could not do on the ground that the time limited by the Hon’ble Court has expired. The Lordships of Supreme Court have held in Dohiyabhai Vs. State, AIR 1964 SC 1563 that “Right to re- examine a witness arises only after the conclusion of cross examination and S.C. 138 says it shall be directed to the explanation of any part of his evidence given during cross examination which is capable of being construed unfavourably too his own side. The object is to give an opportunity to reconcile the discrepancies if any between the statements in examination in chief and cross examination or to explain any statement inadvertently made in cross examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross examination. Where there is no ambiguity or where there is nothing to explain, question put in re-examination with the sole object of giving a change to the witness to unto the effect of the previous statement should not be asked during re-examination (S.142). Section 154 is wide in its scope and court can permit a person calling a witness to but question in the nature of cross examination at the stage of re-examination provided it take care to give opportunity to the adverse party to cross examine the witness in the such case”. It is clear from the afore quoted principles decided by the Hon’ble Apex Court and from the evidence of PW-9 as well as from the instant two aforesaid petitions filed on behalf of the PW-9 and the Additional P.P. that the cross examination of PW-9 does not contain any evidence against his evidence in chief which could be explained or made clear by re-examination of PW-9 through his re- examination vide Section 138 Evidence Act or Section 311 of the Criminal Procedure Code. It is also clear that PW-9 had filed petition after filing of the case against him by the accused. As such the two instant petitions are not maintainable. However, whether the hostility of PW-9 would have been tested on the touch stone of Section 145 Evidence Act by examining the I.O. as some other prosecution witness have supported the prosecution case. The evidence of the I.O. of the case is taken would have sufficed the end of justice.”
29. We find that the factors noted by the trial Court and the conclusion arrived at by it were all appropriate and just, while deciding the application filed under Section 311 Cr.P.C. We do not find any bonafides in the application of the second respondent, while seeking the permission of the Court under Section 311 Cr.P.C. for his re-examination by merely alleging that on the earlier occasion he turned hostile under coercion and threat meted out to him at the instance of the appellant and other accused. It was quite apparent that the complaint, which emanated at the instance of the appellant based on the subsequent incident, which took place on 30.5.2007, which resulted in the registration of the FIR in Khizersarai Police Station in case No.78/2007, seem to have weighed with the second respondent to come forward with the present application under Section 311 Cr.P.C., by way of an afterthought. If really there was a threat to his life at the instance of the appellant and the other accused, as rightly noted by the Court below, it was not known as to why there was no immediate reference to such coercion and undue influence meted out against him at the instance of the appellant, when he had every opportunity to mention the same to the learned trial Judge or to the police officers or to any prosecution agency. Such an indifferent stance and silence maintained by the second respondent herein and the categorical statement made before the Court below in his evidence as appreciated by the Court below was in the proper perspective, while rejecting the application of the respondents filed under Section 311 Cr.P.C. In our considered opinion, the trial Court, had the opportunity to observe the demeanour of the second respondent, while tendering evidence which persuaded the trial Court to reach the said conclusion and that deserves more credence while examining the correctness of the said order passed by the trial Court.
30. In the light of the above conclusion, applying the various principles set out above, we are convinced that the order of the trial Court impugned before the High Court did not call for any interference in any event behind the back of the appellant herein. The appeal, therefore, succeeds. The order impugned dated 9.12.2010; passed in Crl. M.P. 12454/2010 of the High Court is set aside. The order of the trial Court stands restored. The trial Court shall proceed with the trial. The stay granted by this Court in the order dated 7.3.2011, stands vacated. The trial Court shall proceed with the trial from the stage it was left and conclude the same expeditiously, preferably within three months from the date of receipt of the copy of this order.”
10. In view of above law, it is evident that plea of victim that on the earlier occasion he turned hostile under coercion and threat meted out to him at the instance of accused, cannot be a ground for recalling her and re-examine her; as already noted that she was identified by her husband and one PW Dr. Jotishima at the time of recording of her previous statement before court below. At the time of her evidence in Court or subsequent to her evidence she never made any complaint to the court or any police officer that accused persons had yielded any pressure upon her to turn hostile to the prosecution and to give a go by to the prosecution case. When there is no ambiguity in previous statement or nothing to explain, to put question in re-examination the witness cannot be recalled or re-examined. The sole object of witness to give change to the version already given in the Court is not the object of Section 540 Cr.P.C. The re-trial cannot be asked under the provisions of Section 540 Cr.P.C.
11. In view of the above, this Criminal Revision Petition is allowed and the impugned order dated 11.08.2012, passed by the learned Principal District and Sessions Judge, Jammu is set aside. Record be sent back to the trial Court.
(Sanjay Kumar Gupta) Judge
Jammu 03.11.2018