Judgment of Punjab Haryana High Court in the case of Akash Verma & Anr v. State of Haryana & Ors, reported in
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 5470 of 2023 Faku @ Akshya Kumar Panda …. Petitioner(s) Mr. Manas Kumar Chand, Advocate State of Odisha -versus- …. Opposite Party(s) Mr. P.K. Maharaj, ASC CORAM: JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 19.02.2024 Heard. In the present petition, the petitioner is assailing the order Order No. 04. 1. 2. dated 16.11.2023 passed by the learned Additional Sessions Judge- Cum-Special Judge(POCSO), Keonjhar in Special Case No. 11 of 2023 whereby his application under Section 311 Cr.P.C. to recall two witnesses namely P.Ws. 5 and 7 has been turned down. 3. The petitioner contends that P.W.5 who is a doctor could not be cross-examined adequately. Insofar as P.W. 7 is concerned, she is the mother of the victim girl. She did not support the prosecution, hence declared hostile. Therefore, the petitioner could not get opportunity to cross-examine the said witness. The Page 1 of 5 petitioner has placed photocopies of the testimony of P.W. 5 and 7 which are taken on record. 4. Mr. Chand, learned Counsel for the petitioner submits that P.W. 5 in his testimony has categorically stated that the parents of the victim girl did not allow him to physically examine the victim. However, opined that sexual assault on the victim girl cannot be ruled out. In the absence of physical/medical examination of the victim girl, the opinion of the doctor that sexual assault cannot be ruled out is misplaced. Therefore, he needs to be cross-examined elaborately. 5. Mr. Chand, learned counsel for the petitioner further submits that the testimony of P.W. 7 could be used against his client by the prosecution for drawing corroboration with the testimony of other witnesses. 6. Mr. Maharaj, learned counsel for the State contends that P.W. 7 being a hostile witness cannot be recalled for cross- examination. In the absence of any legal bar to recall a hostile witness for re-examination, the objection raised by Mr. Maharaj may not sustainable. 7. Mr. Chand, learned counsel for the petitioner while relying upon a Judgment of Punjab Haryana High Court in the case of Akash Verma & Anr v. State of Haryana & Ors, reported in 2019 Page 2 of 5 CriCC 429; 2018 4 Lawherald 3596; 2018 0 Supreme(P&H) 2693 submits that a hostile witness is also a witness as contemplated under Section 311 Cr.P.C. as such he has relied upon paragraphs- 10,19,20 of the said judgment which reads as under:- the Court of Session by “10. From the arguments that have been addressed, two questions would arise for determination. Firstly, has the power under Section 311 of the Code been rightly exercised to recall the witnesses, given the fact that prosecutrix and her parents had themselves resiled in court and turned hostile? Secondly, would the application be maintainable in its present form as Section 225 of the Code clearly states that a trial is to be the Public conducted before Prosecutor? In the instant case the application under section 311 of the Code has been instituted at the behest of the prosecutrix. 19. An onerous duty that has been cast upon the courts is to ensure fair trial and to arrive at the truth. All the judgments as cited above, clearly delineate that there is no limit on discretion of court to recall and re-examine any such person if his evidence appears to it to be essential for the just decision of the case. The court has to be satisfied that such application is not a frivolous or vexatious application, only to delay the trial or fill up any lacunas in the trial. 20. As far as the question regarding the maintainability of the application filed by the complainant is concerned, Section 225 of the Code clearly specifies that it is the Public Prosecutor who is to conduct the trial Court of Session. However, in given facts and circumstances of the instant case, when the Public Prosecutor himself continued to cross examine the witnesses even after they had turned hostile and did not support the statement given under Section 164 of the Code in order to elicit the truth; and also did not raise any objection to application under Section 311 of the Code as filed the question of by maintainability, it can be safely assumed that the said application had the concurrence of the Public Prosecutor. Even in the court today the State counsel submits that in order to arrive at the truth and to ensure a fair trial, he has no objection to the application being allowed.” complainant raising itself the 8. I agree with the submission made by Mr. Chand, learned counsel for the petitioner to the effect that hostile witness being a Page 3 of 5 witness to the prosecution, his testimony could be used for the purpose of deriving corroboration, therefore such witness could also be recalled for examination, if needs so arise. 9. Taking into consideration the facts in its entirety, I am of the considered view that the trial Court ought to have been afforded one more opportunity to the petitioner for reexamination of P.W.5. 10. Insofar as P.W.7 is concerned, recalling of such witness is not called for because the said witness in her testimony has clearly disowned the prosecution case inter alia stating that she knows nothing about the case and she has also not been examined by the Police. The prosecution declared the said witness as hostile and subjected her to cross-examine under Section 154 of Indian Evidence Act. However, in the said cross-examination by the prosecution nothing could be elucidated from the said witness. 11. Therefore, the submission of Mr. Chand, learned counsel for the petitioner that the testimony of P.W. 7 could be used against his client for the purpose of drawing corroboration with other witnesses is not well-founded. Therefore, the trial Court has rightly rejected his application under Section 311 Cr.P.C for recalling P.W. 7 who is the mother of the victim girl. 12. I find no infirmity in the impugned order insofar as declining the prayer of the petitioner for recalling P.W. 7 being the Page 4 of 5 mother of the victim is concerned, but insofar as P.W.5 is concerned. One more opportunity to cross-examine by the petitioner deserves merit. 13. Accordingly, the petition is partly allowed and the impugned order dated 16.11.2023 is partly set aside. The trial Court is directed to afford one opportunity to the petitioner to cross- examine P.W. 5. Therefore, the trial Court may fix a date of hearing for recalling the said witness and afford a singular opportunity to the petitioner for cross-examination. 14. The CRLMC is accordingly disposed of. (S.S. Mishra) Monalisa Judge Signature Not Verified Digitally Signed Signed by: MONALISA SWAIN Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: High Court of Orissa Date: 21-Feb-2024 11:39:48 Page 5 of 5