Vinay @ Vedprakas (Avasyak) vs State Of Madhya Pradesh

Rejection of an application u/S.311 of Cr.P.C. preferred by juvenile accused/petitioner herein seeking recall of the prosecutrix to be re-examined, led to petitioner preferring an appeal u/S.101 of Juvenile Justice Act, 2015 which on being dismissed by the appellate Court on 03.08.2018 has impelled the juvenile/petitioner to approach this Court through his guardian Dillip Sharma (father).

Learned counsel for the rival parties are heard on the question of admission and as well as final disposal.

The incident dated 10.07.2017 led to filing of an FIR on 11.07.2017 bearing Crime No.421/2017 alleging offences punishable u/S.376D of IPC r/w Sec.4 of the POSCO Act against two accused namely the petitioner and Satyendra @ Guddu. Petitioner was found to be juvenile on the date of incident and therefore his trial proceeded before the Juvenile Justice Board in which testimony of prosecutrix aged about 12 years was recorded as PW-1 on 30.10.2017. This testimony was implicative in nature qua the petitioner/juvenile.

In regard to co-accused Satyendra @ Guddu who being major was proceeded against in S.T. No.132/2017 before the 10th ASJ, Gwalior wherein the same prosecutrix deposed as PW-1 on 09.05.2018 but did not support the prosecution story and even denied knowing co-accused Satyendra @ Guddu and therefore was declared hostile to the prosecution in her cross-examination before the Sessions Court. She even denied any offence having been committed against her by either of the two accused including the petitioner. The prosecutrix further denied having made any complaint to the police against the two accused including the petitioner.

It seems that emboldened by exonerative testimony of prosecutrix in the sessions trial against said co-accused, the petitioner/juvenile in respect of whom the prosecutrix had earlier made implicative statement, filed an application u/S.311 of Cr.P.C. seeking recall of prosecutrix for being re-examined before the Juvenile Justice Board.

The trial Court and as well as the Appellate Court declined to exceed to the request of petitioner/juvenile.

It is seen from the record especially the order of the Revisional Court that the decision of the Apex Court in Hanuman Ram Vs. State of Rajasthan & ors., AIR 2009 SC 69 is relied upon, relevant extract of which is reproduced below for ready reference and convenience:

"7. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquires and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wide the power the greater is the necessity for application of judicial mind.

As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91of the Indian Evidence Act, 1872 (in short `Evidence Act'), are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The Court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.

The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant. These aspects were highlighted in Jagat Ravi v. State of Maharashtra (AIR 1968 SC 178), Rama Paswan and Ors. v. State of Jharkhand (2007 (11) SCC 191) and Iddar and Ors. v. Aabida and Anr. (2007 (11) SCC 211).

In Mishralal and Ors. v. State of M.P. & Ors. (2005 (10) SCC 701), this Court observed inter alia as follows:

"5. The learned counsel for the appellants seriously attacked the evidence of PW 2 Mokam Singh. This witness was examined by the Sessions Judge on 6.2.1991 and cross-examined on the same day by the defence counsel. Thereafter, it seems, that on behalf of the accused persons an application was filed and PW-2 Mokam Singh was recalled. PW-2 was again examined and cross- examined on 31.7.1991. It may be noted that some of the persons who were allegedly involved in this incident were minors and their case was tried by the Juvenile Court. PW 2 Mokam Singh was also examined as a witness in the case before the Juvenile Court. In the Juvenile Court, he gave evidence to the effect that he was not aware of the persons who had attacked him and on hearing the voice of the assailants, he assumed that they were some Banjaras. Upon recalling, PW-2 Mokam Singh was confronted with the evidence he had given later before the Juvenile Court on the basis of which the accused persons were acquitted of the charge under Section 307 IPC for having made an attempt on the life of this witness."

In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW-2 Mokam Singh on 6.2.1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. The courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the court on mere explanation that he had given it under the pressure of the police or some other reason. Whenever the witness speaks falsehood in the court, and it is proved satisfactorily, the court should take a serious action against such witnesses."

From the above verdict of the Apex Court, it is obvious that merely because the same witness has given two different versions of the same incident in two different trials based on the same incident cannot be a good ground for recall of the said witness to depose again.

In view of the above law laid down by the Apex Court, this Court declines interference in the absence of any jurisdictional error in the impugned order.

Accordingly, present revision petition stands dismissed.

No cost.