Court No. - 67
Case :- CRIMINAL REVISION No. - 679 of 2019 Revisionist :- Arjun Sonkar And Anr.
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- Indra Kumar Chaturvedi Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Indra Kumar Chaturvedi, learned counsel for the revisionists, Sri Mohd. Afzal, learned AGA and perused the record.
By means of the instant revision, the revisionists has assailing the order of learned First Additional Sessions Judge, Varanasi in S.T. No. 37 of 2017 (State Vs. Arjun Sonkar and Anr.) dated 05.01.2019 by which the revisionist's application no. 39 Kha dated 04.01.2019, u/s 233 Cr.P.C. was rejected by learned Sessions Judge, Varanasi.
The grounds taken by he learned counsel for the revisionists are that the order passed by learned Sessions Judge is illegal and misconceived, arbitrary and after mis-reading the provisions of section 233 Cr.P.C., has declined the accused- revisionists to adduce Ravindra Kumar Mishra (PW-1) and Krishna Nand Mishra (PW-2) as defence witnesses. Section 233 of Cr.P.C. has provided valuable right for the defence to defend his case but the reasoning adopted by the learned Sessions Judge is in the total negation and contrast with the spirit of section 233 Cr.P.C. It is further argued that the trial court has failed to consider the right given under section 233 Cr.P.C. is neither a procedural right nor discretionary right as u/s 311 Cr.P.C. The basic idea is based upon the principal of best evidence rule. Denial of the right of the accused to enter into the defence would unnecessarily defeat the end of justice and the reasoning adopted by the learned trial judge is not only perverse but also against the established norms in this regard.
The aforesaid arguments were seriously and vehemently assailed and refuted by the learned AGA relying upon the certain citations of the Hon'ble Apex Court on this point.
I have heard the learned counsel for the revisionist as well as learned AGA and perused the record. Before deciding the case on merits, it is imperative to give a bare skeleton facts of the case for the just and appropriate appraisal of the controversy involved in the light of the judgments provided by Hon'ble Apex Court on this subject.
One Ravindra Kumar Mishra has lodged the FIR on 16.11.2016 as Case Crime No. 252 of 2016 at P.S. Jansa District Varanasi u/s 302 IPC for the incident said to have taken place on 16.11.2016 itself at 21:25 hours. This prompt FIR was lodged against the one Arjun Sonkar s/o Dharamraj Sonkar and Pooja Mishra w/o Ravindra Kumar Mishra (the informant), with the allegation that the informant and his father came back from their place of work on 16.11.2016 around 8:30 in the night. In response to the knock over door, his wife Pooja Mishra opened the same and handed her two months old son to his father. After entering into the house the informant and his father inquired about his mother namely, Phool Kumari from his wife Pooja Mishra. She has given an evasive reply but facts remains, Phoo Kumari (mother of informant) was lying under the staircases in the precarious condition. She was oozing blood through her neck. Her neck and wrist were chopped by some sharp edged weapon (pehsul). While carrying to the hospital, an unknown person, who was hiding himself under the staircases tried to sneaked away, however, the informant has identified that person as Arjun Sonkar who is nurturing an illicit relationship with his wife. This relationship was objected by the informant and his parents number of times, but it appears that on account of this illicit relationship he (Arjun Sonkar) with the help and aid of Pooja Mishra has wiped-off his mother by assaulting her and thereafter, she has cleared-off all the blood stains lying over the place of occurrence. After lodging the FIR, the dead body was sent for autopsy and the postmortem report dated 17.1.2016 at 3:30 p.m. shows that the deceased has sustained as many as 10 injuries over her person out of which most of them are incised wound over the vital part of her body and doctor has opined that she died on account of shock as a result of incised wounds over her neck. Thereafter, police has submitted the charge sheet u/s 302, 201 IPC and both the named accused persons were arrested for the commission of the crime. It is further contended that the charges were framed on 12.05.2017 against the accused persons by the learned court of sessions.
Thereafter the trial started rolling, and the testimonies of PW-1 and PW-2 were recorded and closed on 27.06.2018 and 25.09.2018 respectively. On account of testimony of PW-5 was also recorded after great deal. Thereafter statement of accused u/s 313 of Cr.P.C. was also recorded on 11.10.2018. After the conclusion of statement u/s 313 Cr.P.C., an application no. 39 kha was moved by the learned counsel for the defence on 17.12.2018 with the prayer that Ravindra Kumar Mishra (PW-1) and Krishnanand Mishra (PW-2) may be summoned as witness of DEFENCE which was rejected by the learned Sessions Judge on 05.01.2019. It would be relevant to spell out the provision of Section 233 Cr.P.C. for the sake of convenience :-
"(1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it with the record.
(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice."
Learned counsel for the revisionists further submits that it is the valuable right of the defence for every accused to adduce defence witness and in this regard if he chooses to produce the prosecution witnesses as there is no embargo or legal bar over it. The scheme of code of criminal procedure is aimed to provide as adequate right and opportunity to the accused to prove his version of the case. It is true that section 233 Cr.P.C. provides a valuable right to the accused, it is not a mere formality but an essential part of the criminal trial and its omission on the part of the learned trial judge to do so occasion the failure of justice and cannot be cured u/s 464 of Cr.P.C. but at the same time, there is a caveat, provided u/s 233 (3) of the Code. The judge should record his reasons for its refusal, if he considers that the application vexatious or made for the purpose of delay or defeat or complex the entire texture of the case.
Per contra, learned AGA has vehemently opposed the submission made by the learned counsel for the revisionists by mentioning that the only endeavor part of the defence is to delay the entire process and was not moved in good faith. The learned AGA has cited two judgments of Hon'ble Apex Court to buttress his contention (i) Yakub Ismailbhai Patel Vs. State of Gujrat (Crl. Appeal No. 62 of 2004 decided on 31.08.2001) the bench of Hon'ble Apex Court Dr. Ar. Lakshmanan,J. by pursuing the judgment has opine:-
"Significantly this witness, later on filed an affidavit, wherein he had sworn to the fact that whatever he had deposed before Court as PW-1 was not true and it was so done at the instance of Police.
The averments in the affidavit are rightly rejected by the High Court and also the Sessions Court. Once the witness is examined as a prosecution witness, he cannot be allowed to perjure himself by resiling from the testimony given in Court on oath. It is pertinent to note that during the intervening period between giving of evidence as PW-1 and filing of affidavit in Court later he was in jail in a narcotic case and that the accused persons were also fellow inmates there."
In the another judgment of State of Madhya Pradesh Vs. Badri Yadav And Others (Crl. Appeal No. 1642 of 2005 decided on 31.03.2006):-
"Section 233 itself deals with entering upon defence by the accused. The application for recalling and re-examining persons already examined, as provided under Section 311 Cr.P.C., was already rejected. The power to summon any person as a witness or recall and re-examine any person already examined is the discretionary power of the Court in case such evidence appears to it to be essential for a just decision of the case. Under Section 233 Cr.P.C. the accused can enter upon defence and he can apply for the issue of any process for compelling the attendance of any witness in his defence. The provisions of sub-section (3) of Section 233 cannot be understood as compelling the attendance of any prosecution witness examined, cross-examined and discharged to be juxtaposed as DWs. In the present case PW-8 and PW-9 were juxtaposed as DW-1 and DW-2. This situation is not one what was contemplated by sub-section 3 of Section 233 Cr.P.C.
When such frivolous and vexatious petitions are filed, a Judge is not powerless. He should have used his discretionary power and should have refused relief on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the present case, the witnesses were examined by the prosecution as eyewitnesses on 18.12.1990, cross- examined and discharged. Thereafter, an application under Section 311 Cr.P.C. was rejected. They were recalled purportedly in exercise of power under sub- section (3) of Section 233 Cr.P.C. and examined as DW-1 and DW-2 on behalf of the accused on 17.7.1995. This was clearly for the purpose of defeating the ends of justice, which is not permissible under the law."
Hon'ble Supreme Court, that witnesses examined as PWs could be juxtaposed as DWs and be examined as defence witnesses on behalf of accused. The provisions of sub section (3) of section 233 of Code cannot be understood as compelling the attendance of any prosecution witness examined, cross- examined and discharged to be juxtaposed as DWs and it would be fatal and complex the entire issue, and would not render any assistance to meet the ends of justice.
In the imugned order the same reasoning was adopted by the learned Session Judge. It is also mention in the impugned order that the accused persons has not spell out what are the points areas and the subjects on which they want to cross- examine the PW-1 and PW-2 and how they would be helpful to them to prove their case. Thereafter, the learned Sessions Judge has rightly rejected an application 39 Kha by the accused persons and thereafter, in the light of the aforesaid judgments of Hon'ble Apex Court, I am not inclined to exercise my revisional power to up set the alleged order impugned dated 05.01.2019, hence, the present revision lacks of merit and accordingly, rejected.
Trial court is directed to gear up the trial and conclude the same within a maximum period of 6 months.
Office is directed to furnish the copy of this order as early as possible.
Order Date :- 28.2.2019 Nisha