Madhya Pradesh High Court
Shaitan @ Jitendra Singh And Ors. vs State Of Madhya Pradesh on 22 August, 1995
Equivalent citations: 1996(0)MPLJ184
ORDER Shacheendra Dwivedi, J.
1. The petitioners are being tried by the Sessions Court for offences under Sections 148 and 302 read with Section 149, Indian Penal Code.
2. At the trial, the prosecution had examined Smt. Kala, Smt. Kaushalya and Prakash, as eye-witnesses. The prosecution had closed its evidence on 11-3-1995. At that stage, the petitioners filed an application under Section 311 of the Criminal Procedure Code enclosing the affidavits of the above witnesses, which were contrary to the statements given by them at the trial and had prayed to the trial Court for recalling the witnesses.
3. The application was opposed by the State and it was contended that the documents were doubtful and were filed very late. The action of the accused-petitioners was mala fide. It was, therefore, prayed that the application of the petitioners-accused persons be rejected.
4. The learned trial Court considered the application and the affidavits. The Court found that if the affidavits had existed at the time when the witnesses were examined in Court, there was no reason why the accused-petitioners would not have brought the affidavits to the knowledge of their counsel and, therefore, it found that the prayer was apparently belated and doubtful. The trial Court rejected the application, hence this revision.
5. Shri J. P. Gupta, Sr. Counsel, has very forcefully urged that the application of the petitioners could not be rejected. The accused petitioners had the right of recalling the witnesses for cross-examination and for confronting them with the statements made in the affidavits.
6. Shri P. D. Agrawal, Panel Lawyer, appearing for the State, has countered the argument submitting that the prayer of the petitioners has rightly been refused by the learned trial Court as it was the deliberate attempt of the petitioners with ulterior motive to stall the proceedings and to seek the desired version from the witnesses.
7. I have considered the contentions advanced by both the parties. The petitioners are being prosecuted for the above stated offences, since 1991. The affidavits are also stated to be of the year 1991. The purpose of the execution of such documents has not been disclosed. The affidavits did not see the light of the day since the year 1991 till 11-3-1995 when those documents were produced after the prosecution evidence was closed. The accused petitioners did not disclose the reasons as to how and why those affidavits were not produced at the proper stage in the Court when the witnesses were examined.
8. The witnesses themselves or anyone else holding the affidavits did not file them nor had informed the police or its any superior authority during the investigation or even thereafter to the Court at the trial of the existence of such documents.
9. The witnesses are real brothers, Bhabhi and the wife of deceased Sita Ram. Their statements at all stages, during investigation and at the trial, have been consistent. They were examined in the Court after a period of about 4 years, from the alleged execution of the documents. No. question in that regard was ever put to them by defence in cross-examination. The documents have also not come from proper custody.
10. When the prosecution evidence was closed, the documents were filed without any explanation of the extraordinary delay. The inordinate delay in showing the existence of the documents would make them suspicious. Those have rightly been found to be suspicious, in the facts and circumstances of the case. No doubt that the Court has unbridled power to recall the witness, before the conclusion of the trial. But that discretion has to be sound judicial discretion, the exercise of which shall vary on the facts of each case and would depend on the satisfaction of the trial Court. This Court would not normally interfere with the order of the trial Court unless it appeared absolutely necessary for advancing the cause of justice.
11. The provisions of Section 311 are not meant for recalling the witnesses in order to help any party. It is an extraordinary provision, which vests power in the Court to recall the witness for evidence after the one was already examined. Where any fact comes into existence or is disclosed after the witness is discharged and when his evidence was found necessary for the just decision of the case, the Court may recall such witness.
12. On the foregoing discussion in the facts and circumstances of the case, the learned trial Court has committed no mistake in rejecting the extraordinarily delayed prayer of the petitioners for resummoning the witnesses. The revision petition is without merit and is, therefore, dismissed.