Punjab-Haryana High Court
Akshay Kumar @ Tonny vs State Of Haryana on 11 May, 2017
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
CRR No.1354 of 2017 1
280
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR No.1354 of 2017
Date of decision: May 11, 2017
Akshay Kumar @ Tonny
......Petitioner
Versus
State of Haryana and another
.....Respondents
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
Present: Mr. Ashish Naik, Advocate the petitioner.
Mr. A.S. Yadav, AAG Haryana.
Mr. S.K. Verma, Advocate
for respondent No.2-complainant.
****
A.B. CHAUDHARI, J (Oral)
Custody certificate filed by the learned State counsel today
in Court, is taken on record.
Rule. Heard with the consent of learned counsel for the
rival parties.
In a sessions trial arising out of FIR No.25 dated
18.01.2016, under section 302 read with Section 34 of the Indian penal
Code, 1860 (for short 'IPC'), registered at Police Station City Jind,
after the examination-in-chief and cross-examination of PW2-Malti
Devi, an application was filed under Section 311 of the Code of
Criminal Procedure, 1973 (for short 'Cr. P.C.') for recalling her for
further cross-examination. Application was opposed by the
prosecution on the ground that all the remaining witnesses were also
For Subsequent orders see CRM-17740-2017
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examined and the case was at the stage of 313 Cr. P.C. Trial Court
heard the said application and vide order dated 05.04.2017 rejected the
same on the the reasoned order stating therein that the accused had
sufficient opportunity to cross-examine PW2-Malti Devi and the
reasons given for recalling under Section 313 Cr. P.C. were not
genuine. Following are the reasons recorded in Para 7 of the impugned
order dated 05.04.2017:-
"7. I have duly considered the rival contentions of both
the sides and perused the record. Malti Devi wife of
Jogeshwar Parshad (deceased) who is eyewitness
appeared as PW-2 in this case and after her examination,
eight witnesses in prosecution evidence were examined.
After completion of prosecution evidence, incriminating
evidence were put to the accused on 20.02.2017, their
statements under Section 13 Cr. P.C. recorded, accused
also examined one witness namely Som Nath in defence.
Present case is time bound by the Hon'ble High Court vide
order dated 09.02.2017. The reason mentioned in the
application for recalling PW-2 Malti Devi is that on
25.10.2016, defence counsel was not feeling well and not
properly cross-examined the witness. The reason
mentioned in the application is not tenable and seems to
be taken afterthought, the witness could not be recalled on
the ground as stated in the application. If the defence
counsel was not feeling well, he could have requested for
adjournment of case on that day, but he has not requested
an adjournment on that day and PW-2 Malti Devi was
cross-examined at length by the learned defence counsel.
After a lapse of more than five months, present application
is filed. This Court find no merit in the application in
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hand."
Learned counsel for the petitioner submitted that the
perusal of the cross-examination of PW2-Malti Devi would show that
the cross-examination was not made on the material points and
therefore, upon rethought given to the examination-in-chief that was
recorded, counsel for the accused came to the conclusion that it was
necessary to cross-examine PW2-Malti Devi on vital points. He,
therefore, submitted that the application should have been allowed by
the trial Court.
Per contra, learned counsel for respondent No.2-
complainant has vehemently opposed the petition and submitted that
the petitioner had full opportunity and had in fact, cross-examined the
witness at sufficient length and there is no need to allow the cross-
examination over and again.
Before issuance of notice of motion, this Court had asked
the counsel for the petitioner to deposit compensatory costs for the
witness as the witness could be recorded only, subject to compensating
her. Accordingly, learned counsel for the petitioner brought a demand
draft in the name of respondent No.2-complainant. The demand draft
was asked to be submitted by way of compensatory costs to the
complainant whom the accused wanted to cross-examine again. The
trial Court has, in Para 7 of its impugned order, given reason that after
her cross-examination, 8 witnesses by the prosecution were examined;
the statement under Section 313 Cr. P.C. was also recorded and
incriminating part was put to the accused persons. The accused persons
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had examined one defence witness by name Som Nath. The reason in
the application for recalling the complainant was that since the defence
counsel was not keeping well, the witness was not properly cross-
examined. Trial Court found that it was the reason which was
afterthought and therefore, rejected the application. It cannot be
forgotten that the trial is the one for serious offence of murder under
Section 302 of IPC. PW2-Malti Devi the star witness examined by the
prosecution. It is true that the prosecution had examined 8 witnesses
and one defence witness thereafter, but then reading of Section 311 Cr.
P.C. does not prohibit recall of the witness under Section 311 Cr. P.C.
In the present case, learned counsel for the petitioner-
accused submitted that the witness could not be cross-examined on
material points and that is why, he wanted to cross-examine her further
upon recall. In that view of the matter, I think since the petitioner is
being prosecuted in a serious offence of murder, the cross-examination
of witness on the material that left out would be essential and for a fair
trial. At any rate, in so far as PW2-Malti Devi is concerned, care can
be taken to extend protection to her and also by asking the learned
Judge not to allow cross-examination on the material which has
already been made and further not to allow any cross-examination that
on irrelevant material or question. In that view of the matter, I think
PW2-Malti Devi should be allowed to be cross-examined, subject to
payment of compensatory costs in the sum of `50,000/- to her, which
has been brought by the petitioner in the form of demand draft. The
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original demand draft has been handed-over to learned counsel for
respondent No.2-complainant by Reader today itself, for further being
handed-over to complainant-Malti Devi. Receipt in this regard has
been obtained on the photocopy of the demand draft and the same is
marked as 'X' for identification. In the result, I make the following
order:-
ORDER
(i) CRR No.1354 of 2017 is allowed;
(ii) Prayer for examination of only PW2-Malti Devi upon recall is allowed;
(iii) The witness PW2-Malti Devi as well as accused shall appear before the learned trial Judge concerned tomorrow, i.e. 12.05.2017 for cross-examination. Counsel for the accused shall complete the cross-examination tomorrow, i.e. 12.05.2017 itself;
(iv) Concerned SHO is directed to provide protection to PW2- Malti Devi throughout;
(v) A photocopy of this order be given to the learned counsel for the petitioner under the signatures of the Bench Secretary.
(A.B. CHAUDHARI) JUDGE May 11, 2017 mahavir Whether speaking/ reasoned: Yes/No Whether Reportable: Yes/No For Subsequent orders see CRM-17740-2017 5 of 5 ::: Downloaded on - 04-06-2017 18:16:44 :::