Court No. - 70
Case :- APPLICATION U/S 482 No. - 28677 of 2019 Applicant :- Neeraj Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Akhilesh Chandra Shukla Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant and learned Additional Government Advocate for the State/opposite party no.1 and perused the record with the assistance of learned counsel for the parties.
This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the order dated 10.7.2019 passed by Additional Sessions Judge/F.T.C., Court No.1, Meerut in Session Trial No. 1078 of 2016 (State Vs. Neeraj and others), under sections 302, 304B, 504, 498A IPC and 3/4 D.P. Act, Police Station Sardhana, District Meerut.
Assailing the aforesaid impugned order dated 10.07.2019, it is submitted by the learned counsel for the applicant that in the trial Dr. Harshal Singh Parihar has been examined as PW-4 on 24.12.2018 and his cross-examination was done on 7.1.2019. Thereafter all the prosecution witnesses have been examined. Last prosecution witness was examined on 14.03.2019 and statement of accused under Section 313 Cr.P.C. was recorded on 4.4.2019 and dates were being fixed in the trial for final argument, but his earlier counsel was not ready to argue the case on the dates fixed for argument, therefore, applicant being not satisfied by his earlier counsel engaged new counsel on 1.7.2019, who after perusing the entire record, advised the applicant to file an application under Section 311 Cr.P.C. for recall of P.W.-4, because some important questions with regard to duration and colour of injuries of the deceased were not put to him. It is submitted that under the circumstances on 5.7.2019 an application under Section 311 Cr.P.C. was moved by the applicant to recall PW-4, but the same has wrongly been rejected by the trial court. It is submitted that since the applicant is in jail, therefore, it cannot be said that defence is adopting delaying tactics. In para 26 of the application, it is also mentioned that the trial judge is much interested in the case and not ready to give any chance to produce defence evidence to the applicant. It is next submitted that doctor has mentioned some injuries in the post mortem report, but did not mention the duration and nature of injuries, as to whether they are fresh or old injuries, therefore, it was necessary to recall PW-4. The trial court committed legal error in rejected the application, therefore, impugned order dated 10.07.2019 is liable to be quashed.
Per contra, learned AGA refuting the aforesaid submissions advanced on behalf of the applicant, vehemently opposed by contending that the trial is at advance stage and full opportunity of cross-examination had already been given to the accused/applicant. The application under Section 311 Cr.P.C. has been moved by the accused/applicant for ulterior purposes with a view to linger on the proceedings and there is no merit in the submissions of the learned counsel for the applicant, as the same is against the evidence on record, hence the application is liable to be dismissed.
After having heard the arguments of learned counsel for the parties and perusing the impugned order dated 10.07.2019, I find that detailed order has been passed by the trial court considering all the relevant facts and circumstances of the case and specific finding has been recorded by the trial court that in this case repeated adjournment applications have been moved on behalf of the accused persons. Last adjournment application of the accused was allowed on 5.7.2019. Admittedly, the case is listed for final argument. The trial court has also observed that PW-4, Dr. Harshal Singh Parihar has proved the post mortem (Ext. Ka-2) and also stated about the injuries of the deceased in detail in his statement. The prosecution did not point out that any error in the statement of PW-4. As per the provisions of Section 102 and 103 of Indian Evidence Act, burden of proof of the prosecution case lies upon the prosecution. The opportunity of cross-examination to the PW-4 has already been given to the accused. It is true that the very use of the words in Section 311 Cr.P.C., such as 'any court', 'at any stage' or 'of any inquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of this Court in any way. However, very width requires corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection consistently with the provisions of the Code. It is settled that the provision of Section 311 Cr.P.C. cannot be invoked to recall witness to resile from his previous statement. The object underlying in Section 311 of Cr.P.C. is that there may not be failure of justice on account of either party in bringing valuable evidence on record of living ambiguity in the statement of witnesses examined from either side. Determinative factor is whether it is essential for the just decision of the case or not. It is also settled that the power under Section 311 Cr.P.C. could not be invoked by the Court to fill up lacuna unless the Court is satisfied that in the interest of justice, it is necessary to invoke to said extraordinary power.
In this case detail cross-examination has already been done by the PW-4, therefore, the grounds taken by the applicants for recall of PW-4 are not sufficient to be allowed. The allegations levelled by the accused/applicant that the trial court is much interested in the case and not ready to give any chance to produce defence evidence to the applicant is also against the material evidence on record, because prayer for production of any witness in his defence is entirely different issue from the prayer for recalling of any prosecution witness for cross- examination under Section 311 Cr.P.C. There is no application of the accused on record with regard to prayer for production of defence witness.
After going through the impugned order dated 10.7.2019, this Court is of the view that observations and findings recorded by the trial court in the impugned order dated 10.7.2019 is not liable to be interfered on the facts and circumstances of the case. There is no manifest error of law or perversity in the order dated 10.7.2019, as the same is impeccable.
The application lacks merit and is, accordingly, dismissed.
Office is directed to communicate copy of this order to the court concerned.
Order Date :- 25.7.2019 AK Pandey