High Court · 2010

I have heard learned counsel for t he part iesand have gone t hrought he whole recordcarefully Gupt a Suruchi 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 90 CrI eReN0371of2009 e2m I t has been arguedby learned counsel t he revlSlO pet it ionert hat t hereis clear at t em pton t he partof t he t he lacuna in t he case of t he which is not t o fill up as per law I t is 61rt hercont endedt hat t he case was at t he st ageof argum ent sand rat herpartargum ent swere also addressedwhen t he present m oved hence is caused t o t he and he has been deprivedof rightof fair t rial I t has furt herbeen cont endedt hat filed one aft er anot her for addit ional wit nessesunder Sect ion 311 CrPC and t hat t he presentapplicat ioncan be said t o be a fift h one On t he ot her hand it has been arguedbylearned St at ecounsel t hat t he wit nesssoughtt o be exam ined by t he nam elyHC Sukhdev Singhand allowed by learned t rial Court is very m at erial for j ust decisionof t his case and t hat t he for addit ional evidence can be m oved at any st ageof t rial hence no fault can be found wit h t he order passedbylearnedt rial Court The relevantpara of t he by leam ed t rial Court allowing readsas underl Sect ion 311 CrC order dat ed522009 passed in t erm s of Aft er hearinglearnedcounselfor t hepart iesand going 1 L 0 C C5 I Z Q X c4j CO e Z 0m OJJ1 4 t hrought he records of t he case it is found t hat inadvert enc agency and rat hernegligenceon t he part of t he so also t he is writ t en on t he wall but t his reason alone should not be perm it t edt o com e 1I l t heway of evidenc which is necessaryfor effect ive disposalof t he case The Court is not fet t eredbecauseof lack of com pet enceof t he officer or t he agency Caseof t he is t hat Vaginalswabs and sm ear slides lift ed from t he deadbodyof Babyduringpostm ort em were sent for DNA Profilingand her DNA profilehas m at ched wit h t he DNA 1S profileof t he accused To prove t his point requiredt o est ablisha chain of it s wit nesses and one of t he link in t hat chain is C Sukhdev Singhbut was not JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document Gupt a Suruchi 12: 36 True Scanned Copy of Original PHHC,Chandigarh J 1 91 t 9 CrI eRN00371of2009 e3e cit ed as a wit ness in t he list of wit nesses For all t hese reasons is allowed subj ectt o however paym entof Rsl000 as cost s payablet o Dist rict LegalServiceAut horit y The St at ewould be at libert yt o recover erring t his am ount from t he officer A copyof t his order be sent t o SSP Jalandhar for Adj oum edt o 1022009 t hedat ealreadyOxedfor PWs I t is pert inentt o Sect ion311 CrPC underwhich t he was m oved and t he im pugnedorder was passedThe sam e readsas under 311 personpresent eAnyCourt t o sum m on m at erial wit ness or exam lne t rial or ot her proceedingunder t his Code sum m on m ay at any st ageof any inquiry any person asa Wit ness or exam ine any person in at t endance t houghnot any person sum m oned as a wit ness or recall and reexam ine alreadyexam ined and t he Court shall sum m on and exam ineor recall and reexam ine any such person if his evidence appears t o it t o be essent ialt o t hej ustdecisionoft he case I l While t he said provisionof Sect ion 311 CrPC Honble ApexCourt in Hanum an Ram vse The St at eof Raj ast hanand orse2008 RCR 823 observedas under m L 0 C Z t 5 I Z I c4j 00 7 Z CL MJJlJ 6 The Sect ionis 111t wo part s Whereas t he word used in t he Orst part is m ay t he secondpart uses I n consequences t he flrst part gives purely aut horit yt o a Crim inal Court and enables it at anyst ageof an enquiryt rial or proceedingunder t he Code a1 t o sum m on any one as a wit ness or bl t o exam ine any person t o recall and reexam ine any person presentin Court or whose evidencehasalreadybeen recorded On t he ot her hand and com pelst he Court t o t ake t he second partis anyof t heaforem ent ionedst epsif t he new evidence appearst o it essent ial t o t he j ust decision of This is a t he casee provision enabling and JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document cert alll Gupt a Suruchi 12: 36 True Scanned Copy of Original PHHC,Chandigarh 92 V CrleReN0371of 2009 4 m r 0 C I 0 I Z c6 42 Z CL lJ clrcum st ances lm posing OI l t he Court bydut yof exam ininga I t is m at erialwit ness who would not be broughtbefore it couched in t he widest possiblet erm s and calls for lim it at ion eit her wit h regardt o t he st ageat which t he powers of t he Court should be exercised or wit h regardt o t he m anner lll which it should be exercised I t is not onlyt he but also t he plaindut yof a Court t o exam ine such of wit nessesas it considers absolut elynecessaryfor doingj ust ice t hose bet ween t heSt at e and t he subj ectThere lS a dut ycast upon t heCourt t o arrive at t he t rut h byall lawful m eans and one of suchm eans is t he exam inat ionof wit nessesof it s own accord whenfor cert ain obvious reasons eit her part y1Snot t o call wit nesseswho are known t o be in a posit iont o speak relevantfact s 7 The obj ect Sect ion 311 of t he Code is t hat t here m ay not be failure of j ust iceon account of m ist ake of eit her part yin bringingt he valuable evidence on record or leavingam biguit yin t he st at em ent s of t he wit nessesexam ined from eit her side The det erm inat ivefact or is whet her it essent ial t o t he j ustdecision of t he case The sect ion is not lim it ed onlyfor t he benefit of t he accused and it will not be an im properexercise of t he powers of t he Court t o sum m on a wit ness under t he Sect ion m erelybecause t he evidence support st he case t he and not t hat of t he accused The sect ion is a generalsect ion which appliest o all enquiriesand t rial under t he Code and em powers t o issue sum m ons t o any wit ness at any st ageof t rial or enquiry I n Sect ion 311 t he significantexpressiont hat occurs is at any st ageof inquiryor t rial or ot her proceedingunder t his Code I t is however t o be bornein m ind t hat whereast he sect ion confers a very wide poweron t he Court on wit nesses t he discret ion conferred is t o be exercisedj udiciouslyas t he wide t he power JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document Gupt a Suruchi 12: 36 True Scanned Copy of Original PHHC,Chandigarh 93 1 1 CrlReNoe371of2009 8e t hegreat eris t henecessit yfor ofj udicialm ind 8 As indicat ed above t he Sect ion 1S wholly The second part of im posesupon t he I t is t hat t he Court shall sum m on and exam ine all persons whose evidence appears t o be 1 0 0 C5 I I cS 7 Z C 1llll essent ialt o t hej ustdecision of t he case t he I t is a cardinalrule 111 law of evidencet hat t he best available evidenceshould be broughtbefore t heCourt Sect ions60 64 and 91 of t he I ndian Evidence Act 1872 t his rule The Court is not t he Code t o com peleit her t he short Evidence Act o are basedon under t heprovisionsof t he defence t o exam ine any part icularwit ness or wit nesseson t heir side This m ust be left t o t he part iesBut in weighingt heevidence t he Court can t hat t he best available t ake not e of t he fact evidence has not been given and can draw an adverse inference The Courtwill oft en have t o dependon from fact s elicit ed lll m ade by t he part iesor on inconclusive inferenc t he evidence I n such casest he Court has t o act under t he second partof t hesect ion Som et im est he exam inat lon of wit nessesas direct edby t he Court m ayresult 111what is t houghtt o be Sllingof a fact or and cannot be t aken int o account Whet her That is purely t he new evidenceis essent ialor not m ust of course dependon and has t o be det erm ined by t he t he fact s of each case PresidingJudge 9 The obj ectof Sect ion 311 is t o bringon record evidence not only from t he pointof view of t he accused and t he t he orderly prosecut ionbut also from t he pointof Vlew societ yI f a wit nesscaI led by Court givesevidenc against t he he should be allowed an t o crosse exam lne The rightt o crossaexam inea wit ness who is called by a Court anses not under t he provisionof Sect ion 311 but under t he Evidence Act which givesa part yt he rightt o crosse JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document Gupt a Suruchi 12: 36 True Scanned Copy of Original PHHC,Chandigarh 94 1 0 0 C5 I Z t I 08 7 Z 101 CrI RNo371 of2009 e6m a wit ness who is not his own wit ness Since a wit nesssum m onedbyt he Court could not be t erm eda wit ness part y t he Court should givet he rightof of any t o t he These aspect swere in JagatRavi v St at e of Maharasht raAI R 1968 SC 1781 Ram a Paswan and Orse ve St at e of 21RCR 6Crim inall7171 2007 1 RAJ 2007 7332 SCC 191 and I ddar and orse vSe Aabida RCR Crim inall 90922007 1911 2007111SCC 2111099 Ont he sam e pointreferenceis also m ade t o anot her ofHonble ApexCourt renderedin Him anshu SinghSabharwal vs St at e ofMePeand ors 2008 2l RCR Crim inall267 wherein it was observedas 16 The Court s have t o t ake a role in a t ria Theyare not t o be t aperecorderst o recordwhat ever 1Sbeingst at edbyt he wit nessesSect ion311 of t he Code and Sect ion165 of t he Evidence Act confer vast and wide powers Officersof Court t o elicit all necessarym at erials Oll by playingan act ive role in t he evidence collect ingprocess Theyhave t o m onit or t he m anner t hat which is not in aid of j ust icein a relevant 1S nOt broughtm t o record Even if t he prosecut or1S rem iss in som e waysit can cont rolt he SO t hatult im at e m orenecessarywhere t he Court has reasons t rut h is arrived at This becom es t o believet hat t he agency or t he prosecut oris not act ingin t he m anner t o be TheCourt cannot afford t o be wishfullyor ignorantor oblivioust o such serious or derelict ion of dut yon t he partof t he The prosecut orwho does not act fairlyand act s m ore like a counsel for t he defence is a liabilit yt o t he fair j udicial and Court could not also playint o t he handsof such JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document Gupt a Suruchi 12: 36 True Scanned Copy of Original PHHC,Chandigarh 95 0 CrI eReNoe371of2009 4e m 0 C4 0 e P Z 2 I 08 7 Z t l 1 1 j agency showingindifference or at t it udeof t ot al aloofness 17 The power of t he Court under Sect ion 165 of t he EvidenceAct is in a way t o it s power under Sect ion311 of t he Code The Sect ionconsist s of t wo part s 1ee i givinga discret ion t o t he Court t o exam ine t he wit ness port ionwhich com pelst he at any st ageand 6iilt he Court t o exam ine a wit ness if his evidenceappearst o be essent ial t o t he j ust decision of t he Court Thought he discret iongivent o t he Court is very wide t he very widt h requiresa caut ion I n Mohan Lal ve Union of I ndia 1991 01 RCR Crim inal 182 1991 SupplI SCC 2711t his Court has observed while t hescope and am bit of Sect ion 311 t hat t he very usageof t he word such as t rial or ot her anyCourt at any st age or any enquiryor procedingsany person and any such person clearlyspells in t he widest possiblet erm s out t hat t heSect ion has and do not lim it t he discret ionof t he Court ln any way However as not ed above t he very widt h requiresa powers should be caut lOll t hat t he 14lJl invoked as t he udiciallywit h j ust icerequireand exercised wit h t he provisionsof t he Code The second partof t he Sect iondoes not allow any discret ion but and binds t he Court t o t ake necessary st epsif t he fresh evidence t o be obt ained is essent ial t o t he j ust decision of t he case essent ial t o an act ive and alert m ind and not t o one which is bent t o abandon or abdicat e Obj ectof arnve at t he t rut h t he Sect ion is t o enable t he Court t o of t he fact t hat t he t he defence has failed t o producesom e evidence which is necessary for a j ust and proper disposalof poweris exercised and t he evidenceis exam ined neit her t o t he case The helpt he prosecut ionnor t he defence if t he Court feels t hat JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document Gupt a Suruchi 12: 36 True Scanned Copy of Original PHHC,Chandigarh 96 CrleReN0e371of2009 e I J1 t here is necessit yt o act ln t erm s of Sect ion 311 but onlyt o subserve t he cause of j ust iceand publicint erest wit h an obj ectof get t ingt he evidence in aid of a j ustdecision and t o upholdt he t rut h 99 I t is done As is clear from t he order passedby learned t rial Court of t he m inor lift ed from t he vaginalswabs and sm ear slides were girlduringpost m ort emand t he sam e were sent for DNA profilingand her DNA profilewas m at chedwit h t he DNA profileof t he accused henc 111 order t o prove t hispointt he wit nesses Furt her as is clear by t he order passedbylearnedt rial Court t o est ablishchain of it s Evidence of Sukhdev Singhis essent ial in t hat direct ion learned counsel for t he as well as by t here is clear negligereon t he partof t he t he 111 not agencyas well as on t he partof t he m at erialwit ncs3 Howevcras has been observedby Honhlc ApexCourt in Him anshu Singh Sabharwals case supra t he t rial Court cannot sit as a rnut e spect at or duringt rial and has t o t ake m at erialand essent ialfor t he decision of t hecase role in t ria The wit nessis very The obj ectof Sect ionis t o enable t he Court t o arrive at prosecut ionor defence has failed lo producet he evidence which is t he t rut h t he fact t hat necessaryfor j ustand proper disposalof t he case As has been observedby P C 0 C Z C5 I Z 06 W2 Z m 8A Honble ApexCourt in Hanum an Ram s case Supralt he second partof and com pelst he Court t o t ake any oft he Sect ion 311 CrPC is st epse t o sum m on any one as a wit ness t o exam lne any person presentin t he Court or t o recall and reexam ine any p6rsonwhose evidence has alreadybeen recorded if t he new evidence appearst o be essent ial for I t has also been arguedbylearnedcounsel for t he j ustdecision of t he case revisionlet it ioner t hat in t he im pugnedorder it has been m ent ioned t hat t he nam e of t he wit nesswas not m ent ioned in t he I ist of t he wit nesses however he had alreadybeen exam ined as PW15 Howevereven if it is t aken t hat it has been m ent ioned by learned t rial Court t hat nam e of Const able Sukhdev Singhwas not m ent ioned as wit nesses in t he list of wit nesses t he sam e 1s not going t o m ake any one of t he JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document Gupt a Suruchi 12: 36 True Scanned Copy of Original PHHC,Chandigarh 97 J CrleReN0371of2009 n9a difference The wit ness is m at erialone t o prove t he link evidenceof vaginalswabs and sm ear slides lift ed from t he t he deceasedduringpost m ort emfor DNA profile Henceit cannot be said t hat any illegalit yhas been com m it t ed bylearned t rial Court while passingt he There is no m erit in t hepresentrevisionpet it ionThe sam e 1S herebydism issed 1812010 m eenu Not el Whet hert o be referredt o raS8c Judg 1 upt al LJ Yesl a 0 C I C5 I Z e2 r Ar I 08 5l r 1 7 Z Qm r Gupt a Suruchi 12: 36 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document