State v. Durbesh), under Section
Case Details
Neutral Citation No. - 2024:AHC:108352 Court No. - 76 Case :- APPLICATION U/S 482 No. - 12822 of 2024 Applicant :- Durbesh Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anurag Shukla Counsel for Opposite Party :- G.A.,Kunwar Bhadur Dixit Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicant, learned counsel for informant, learned A.G.A. for the State and perused the material brought on record. 2. This application under Section - 482 Cr.P.C. has been filed against order dated 02.01.2024, passed by learned District and Sessions Judge, Mainpuri in Session Trial No. 45 of 2021 (State vs. Durbesh), under Section - 498-A, 304-B I.P.C. and 3/4 D.P. Act, Police Station - Barnahal, District - Mainpuri, whereby an application filed by applicant-accused under Section - 311 Cr.P.C. for recalling of P.W.-1 Arvind Kumar for further cross examination has been rejected.
Legal Reasoning
3. Learned counsel for applicant submitted that the trial court has not considered the facts and position of law in correct perspective and the application filed by the applicant/accused under section - 311 Cr.P.C. for recalling of P.W.-1 Arvind Kumar has been rejected in an arbitrary manner. Applicant is husband of deceased. It was submitted that after examination of P.W.-1, another witness P.W.-2 Sunita, who is mother of deceased, in her cross examination has stated that after giving birth to a child, her daughter (deceased) used to remain ill and she was under depression and that the family of her in-laws has provided proper treatment to her. She has also stated that the husband and the in-laws of the deceased have never harassed the deceased on account of dowry and that her daughter (deceased) has committed suicide under depression. Learned counsel submitted that P.W.-3 has also made similar statement. Learned counsel submitted that in view of facts emerged in statement of P.W-2 and P.W.-3, it is necessary that on these points, P.W.-1 Arvind Kumar be also cross examined and thus, in the interest of justice, it is necessary that P.W.-1 must have been summoned for further cross examination. Referring to facts of the
Legal Reasoning
matter, it was submitted that impugned order is against facts and law and thus liable to be set aside. 4. Learned counsel for the informant has not opposed the application. 5. Learned A.G.A. has opposed the application and submitted that the accused/defence been granted sufficient opportunity to cross examine P.W.-1 Arvind Kumar and he was cross examined at length and that there is no necessity for recalling of P.W.-1. It was submitted that there is no illegality or perversity in the impugned order. 6. I have considered the rival submissions and perused the record. 7. 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. 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. 8. As far as question of jurisdiction under section 311 Cr.P.C. is concerned, it is clear that Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. 9. In the instant matter, perusal of record shows that the informant/P.W.-1 Arvind Kumar has lodged first information report of this case alleging that his daughter Rama Devi was married with applicant-accused Durbesh but she was being harassed on account of dowry and on 13.10.2020 applicant- accused and his family members have caused her death. During trial, informant/P.W.-1 Arvind Kumar has supported the prosecution version. P.W.-1 Arvind Kumar was cross examined at length on two dates and thus, it is apparent that applicant- accused/defence has been granted sufficient opportunity to cross examine the P.W.-1 Arvind Kumar. It appears that P.W.-2 Sunita, who is mother of deceased, has also supported the prosecution version in her examination-in-chief but in her cross examination she has backtracked from prosecution version and stated that after her daughter (deceased) has given birth to a child, she used to remain ill and she was provided treatment by the family members of her in-laws but her illness could not be cured. She has also stated that her daughter (deceased) was never harassed by the accused persons on account of dowry and in fact she has committed suicide under depression. P.W.-3 Sharda Devi, who is aunt of deceased, has also not supported prosecution version and turned hostile. Thereafter, accused has moved an application under Section – 311 Cr.P.C. for recalling of P.W.-1 Arvind Kumar for further cross examination. The trial court has inter-alia noted in the impugned order that by way of recalling the P.W.-1 Arvind Kumar, the defence intends to get him declared hostile. In view of specific facts and circumstances of the case, the said observations of the learned trial court cannot be said without any basis. As noted above, the defence has been provided sufficient opportunity for cross examination of P.W.-1 Arvind Kumar and in fact he has been cross examined at length on two dates. Merely because the subsequent witnesses have not supported the prosecution version, in view of attending and facts and circumstances, it cannot be a ground to recall P.W.-1 Arvind Kumar for further cross examination. Considering all these facts and circumstances, it cannot be said that recalling of P.W.-1 Arvind Kumar is necessary to arrive at the just decision of the case. There is no such material illegality or perversity in the impugned order so as to require any interference by this Court by invoking extraordinary powers envisaged under Section – 482 Cr.P.C. The instant application has no merit and thus, liable to be rejected. 10. In view of the aforesaid, the instant application under Section - 482 Cr.P.C. is hereby rejected. Order Date :- 4.7.2024/S Rawat