Allahabad High Court
Mamta Kumari vs State Of U.P. & Anr. on 6 May, 2021
Equivalent citations: AIRONLINE 2021 ALL 963
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 26 Case :- CRIMINAL REVISION No. - 342 of 2021 Revisionist :- Mamta Kumari Opposite Party :- State Of U.P. & Anr. Counsel for Revisionist :- Ashish Raman Mishra Counsel for Opposite Party :- Govt. Advocate Hon'ble Alok Mathur,J.
1. Heard Sri Ashish Raman Mishra, learned counsel for the revisionist as well as learned Additional Government Advocate for the State of U.P. through video conferencing in view of COVID-19 pandemic.
2. The revisionist has assailed the order dated 18.03.2021, passed by the Additional Sessions Judge/Special Judge (POCSO), Bahraich in Special Sessions Case No. 36 of 2016 - State Vs. Ajay Kumar, arising out of Case Crime No. 58 of 2016, under Section 376 of the Indian Penal Code (I.P.C). and Sections 3/4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), Police Station - Jarwal Road, District - Bahraich, whereby the application preferred by the revisionist/prosecutrix under Section 311 Cr.P.C. for re-recording her statement has been rejected.
3. It has been submitted by the Counsel for the revisionist that a first information report was lodged on 13.01.2016, under Section 376 I.P.C. and Sections 3/4 of POCSO Act against one Ajay Kumar S/o Peshkar, R/o Tapesipah, Police Station - Jarwal Road, District - Bahraich, alleging that the said accused had sexually assaulted the prosecutrix when she had gone to the fields to ease herself in the morning. Investigation was carried out and statements of prosecutrix under Sections 161 and 164 Cr.P.C. were recorded. She reiterated and supported the contents of first information report and after investigation, charge sheet was filed in the Court, pursuant to which the trial commenced against the accused under Sections 376 I.P.C. and Sections 3/4 of POCSO Act. During trial, statement of prosecutrix was also recorded on 19.10.2018, which has been placed on record. The prosecutrix has stated that on the date of occurrence, when she went outside to ease herself in the morning the accused Ajay Kumar dragged her into the fields and committed rape on her, after which she returned to her house and informed her mother of the said incident and subsequently her father informed the Police. After recording the evidence, the trial is at the stage of final arguments, when the prosecutrix moved an application under Section 311 Cr.P.C. before the trial Court seeking permission to recall her as a witness.
4. The trial Court after considering the submissions of learned counsel for the parties has rejected the application u/s 311 Cr.P.C., on the ground that it is a clear attempt by the prosecutrix to delay the trial and now she is making efforts to exonerate the accused for some reasons which have not been disclosed. The prosecutrix not being satisfied by the rejection has approached this Court, and hence this revision.
5. Learned counsel for the revisionist has submitted that the prosecutrix after coming to know that the named accused Ajay Kumar is not the person who had committed rape upon her, moved an application u/s 311 Cr.P.C. for re-recording her statement so as to bring the truth on record. It was vehemently urged that the trial Court has wrongly and illegally rejected the application of the prosecutrix.
6. Learned Additional Government Advocate has opposed the revision by submitting that inter alia, the prosecutrix is attempting to give an exculpatory statement in favour of the accused so as to exonerate him, for the reasons best known to her, and the application has not been filed in a bona fide manner, and further, there is no explanation for the delay in filing the same. It is also urged that her examination in chief and cross examination has been recorded way back in 2018. In either of the said statements she has not mentioned that she could not identify the accused or that she had wrongly identified the accused. It is submitted that even otherwise, this fact is patently false which would be abundantly clear from a bare perusal of her own statements recorded during investigation and also during the trial, and thereby, he has defended the impugned order and has prayed that the revision is devoid of merits and may be dismissed.
7. Heard learned counsel for the parties and perused the record.
8. From the perusal of record as well as impugned order it is clear that statement of prosecutrix was recorded on 19.10.2018 and after nearly two and half years, an application u/s 311 Cr.P.C. has been moved, whereby the prosecutrix herself wanted to bring on record the fact that the accused was not the person who committed rape on her. When asked by the Court from counsel for the revisionist as to what purpose would be served or the reason for delay in moving the application under section 311 Cr.P.C. in light of the fact that the statement of the prosecutrix had been recorded before the trial Court in the year 2018, in the presence of the accused, no explanation was forthcoming.
To examine the validity of the impugned order, as well as examine the scope of the power under section 311 Cr.P.C. before the trial Court, it is necessary to look into the statutory provisions and its interpretation by the Hon'ble Apex Court.
9. Section 311 Cr.P.C. reads as under:-
"311. Power to summon material witness, or examine person present:
Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case"
10. The Supreme Court in the case of Jamatraj Kewalji Govani Vs. State of Maharashtra - AIR 1968 SC 178, has held in paragraph 14 that:-
"14. It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction."
11. In the decision reported in Mohanlal Shamji Soni vs. Union of India and another, 1991 Suppl.(1) SCC 271, the Apex Court again highlighted the importance of the power to be exercised under Section 311 Cr.P.C. as under in paragraph 10:-
"10....In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re- examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated."
12. In the decision in Raj Deo Sharma (II) vs. State of Bihar, 1999 (7) SCC 604, the proposition has been reiterated by the Apex Court as under in paragraph 9:-
"9. We may observe that the power of the court as envisaged in Section 311 of the Code of Criminal Procedure has not been curtailed by this Court. Neither in the decision of the five-Judge Bench in A.R. Antulay case nor in Kartar Singh case such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 of the Code. We make it clear that if evidence of any witness appears to the court to be essential to the just decision of the case it is the duty of the court to summon and examine or recall and re-examine any such person."
13. In U.T. of Dadra and Nagar Haveli and Anr. Vs. Fatehsinh Mohanish Chauhan, 2006 (7) SCC 529, the decision has been further elucidated by the Supreme Court as under in paragraph 15:-
"15. A conspectus of authorities referred to above would show that the principle is well settled that the exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as "filling in a lacuna in the prosecution case" unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice."
14. In Iddar and Others Vs. Abida & Others, AIR 2007 SC 3029, the object underlying under Section 311 Cr.P.C., has been stated by the Apex Court as under in paragraph 11:-
"11. 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, enquiries 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 wider the power the greater is the necessity for application of judicial mind."
15. In P. Sanjeeva Rao Vs. State of A.P., AIR 2012 SC 2242, the scope of Section 311 Cr.P.C. has been highlighted by the Apex Court by making reference to an earlier decision of the Court and also with particular reference to the case, which was dealt with in that decision in paragraphs 13 and 16, which are as under:-
"13. Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas Vs. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite:
"In such circumstances, if the new counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible."
16. Considering all the previous judments, the Supreme Court outlined certain principles for excise of power under section 311 Cr.P.C. in the case of Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461.
"17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:
a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 Cr.P.C. is noted by the Court for a just decision of a case?
b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated.
c) If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
d) The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
e) The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
f) The wide discretionary power should be exercised judiciously and not arbitrarily.
g) The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
h) The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
i) The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
l) The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
m) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
n) The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."
17. I have given my anxious consideration to the facts as narrated hereinabove. Briefly the facts are that father of the revisionist lodged first information report against the accused on 13/01/2016 under section 376 IPC and 3/4 of the Protection of Children from Sexual Offences Act, 2012 at Police Station - Jarwal Road, District - Bahraich. Subsequently, investigation was conducted by the police and charge sheet was submitted against be accused, and the trial commenced vide Special Sessions Case No. 36 of 2013. During the trial, the statement of the revisionist was recorded as PW 2 in 2018. It is only after a lapse of nearly 3 years the application was moved by the revisionist for recall of witness along with a prayer for her being examined again.
18. In order to examine the validity and legality of the order passed by the trial court rejecting the application under Section 311 Cr.P.C. preferred by the revisionist we have to advert to the various pronouncements of the Hon'ble Apex Court as referred to herein above where it has been stated that the object underlining Section 311 of the code is that there may not be a failure of justice on account of mistake of either party in bringing valuable evidence on record or leaving ambiguity in the statement of witnesses examined from either side, and on the other hand the exercise of power has to be made on settled principles as enumerated in the case of Rajaram Prasad Yadav (Supra).
19. With regard to the scope of an application under Section 311 of the code for recall of the witnesses it has been observed by the Hon'ble Apex Court in the case of State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402 :
"Certainly recall could be permitted if essential for the just decision but not on such consideration as has been adopted in the present case. Mere observation that recall was necessary "for ensuring fair trial" is not enough unless there are tangible reasons to show how the fair trial suffered without recall. Recall is not a matter of course and the discretion given to the court has to be exercised judiciously to prevent failure of justice and not arbitrarily. While the party is even permitted to correct its bona fide error and may be entitled to further opportunity even when such opportunity may be sought without any fault on the part of the opposite party, plea for recall for advancing justice has to be bona fide and has to be balanced carefully with the other relevant considerations including uncalled for hardship to the witnesses and uncalled for delay in the trial. Having regard to these considerations, we do not find any ground to justify the recall of witnesses already examined."
20. The precipice of the abovementioned Judgments is that the primary object of the application under section 311 Cr.P.C. is to ensure a fair trial and any evidence which may be brought on record should in fact be taken on record so as to prevent any failure of justice, but on the other hand such an application has to be filed in bona fide manner for advancement of securing a fair trial and even extends to correct any bona fide error.
21. Adjudicating a similar controversy the Hon'ble Supreme Court in the case of Umar Mohammad other's v state of Rajasthan [2007] 14 SCC 711, upheld the rejection of the application under Section 311 of the code where the same was filed after 9 months of the deposition of the prosecutrix and after 4 years of the incident and it was observed that the delay was itself of pointer to the fact that the victim had been won over. It was further observed that "it is absurd to content that he, after a period of 4 years and that too after his examination in chief and cross examination was completed, would file in application on his own will and volition. The Supreme Court upheld the order of trial court and observed "application was, therefore rightly dismissed".
22. The reason disclosed by the revisionist for filing the application under section 311 Cr.P.C. enumerated in paragraph no. 7 of the revision is that the revisionist was under the impression that the named accused is the person who had committed rape, but after recording her evidence when she saw the named accused during the trial, she realised that the named accused is not the person who has committed rape on her, and therefore prayed that she be recalled as witness so that she, by fresh statement, could bring on record this fact.
23. It is for the aforesaid reason that the revisionist moved an application under section 311 of the Cr.P.C. for recalling her as a witness and re-recording her statement.
24. The trial court has rejected the application under section 311 of the crpc after observing that the stage of evidence is over and the matter is fixed for final arguments. Further, it has been considered that the statement of the prosecutrix had already been recorded as PW 2 and the statement of the accused has also been recorded as per Section 313 of the Cr.P.C. where he has not denied his identity as being Ajay Kumar. It has also been observed that in case there was a dispute regarding identity of the accused, an application should have been moved on behalf of the accused rather than the prosecutrix, and for these reasons the application was rejected.
25. In the present case, the application u/s 311 Cr.P.C. has been filed after a considerable delay of more than two and a half years which has not been explained which leads us to an irresistible conclusion that the same is an afterthought and has not been filed in a bona-fide manner, and further, it is an attempt for some reason, which seems to be questionable, seeks to materially dispute the identity of the accused, and thereby completely alter the very basis of the prosecution, of which the revisionist herself is the author. Undoubtedly, the power to recall any witness is vested in the trial Court and can be exercised at any stage of the trial, but the same has to be done in a reasonable and bona fide manner to meet the ends of justice. It is also to be taken into account that the statement of the prosecutrix during trial was recorded as far back as 2018.
26. According to the provisions of section 273 Cr.P.C. the evidence during a trial has to be recorded in presence of the accused, and therefore in 2018 when the examination in chief was recorded, the same must have been done in the presence of the accused, and there is no denial of the same in either the application moved before the trial Court or before this Court. It is therefore safe to presume that the Examination in chief was recorded in presence of the accused, and therefore undisputedly, the revisionist had ample opportunity to identify or question the identity of the accused who was present in court. No dispute about the identity of the accused was raised before the trial Court or within any reasonable time subsequently. No credible or convincing explanation is forthcoming for not raising the dispute regarding identity of the accused at that stage. On the contrary a perusal of statement of revisionist during trial, the following facts emerge, which unequivocally point out that the revisionist was aware of the identity of the accused:-
A. A perusal of the statement of the prosecutrix would indicate that she has categorically named the accused who sexually assaulted her.
B. During cross examination she has stated that previously she did not know the accused but she saw him when she appeared before the trial court for her deposition.
C. During cross examination she stated that she had identified the accused in the police station where she came to know about the name of the accused.
D. During cross examination it has again been stated by the prosecutrix that the accused had accosted her in the morning of the date of incident when she had gone to ease herself in the fields, from behind the accused had put a muffler around her face so that she could not shout for help.
27. The application under section 311 CrPC filed by the revisionist, on the face of it defeats the very purpose for which it has been moved. It does not in any manner advance the ends of Justice or the case of the prosecution but defeats and sets to naught the entire proceedings conducted till date. The identity of the accused is one of the most salient and crucial aspect to be determined by the trial Court when the same is questioned by the accused. In the present case the identity of the accused is sought to be questioned by the prosecutrix herself, rather than by the accused, which is rather unusual. It cannot be ruled out that the said application has been moved at the behest of the accused and that the prosecutrix has been won over for some undisclosed consideration or threat.
28. A perusal of application u/s 311 Cr.P.C. clearly indicates that same is highly belated and has not been filed to secure the ends of justice. Statement of prosecutrix as well as the statement of accused u/s 313 Cr.P.C. have been recorded, and trial is at its fag end and there is no cogent explanation for delay in filing the application at such a belated stage.
29. In light of the above facts, it is clear that the application under section 311 Cr.P.C. has not been moved in a bona fide manner by the revisionist to secure the ends of Justice. It does not seek to fulfill some lacunae which may have been inadvertently left out during the examination in chief of the prosecutrix. From a bare perusal of her statement and cross examination, it is clearly borne out that she did not doubt the identity of the accused who would have been present in Court. She herself has stated during her cross examination that in the Police Station she had met the accused and was informed about his name. Thus, all along she was aware of the identity of the accused till she chose to file the application under section 311 Cr.P.C. After duly considering the facts of the case, the plea set forth by the revisionist does not inspire any confidence and is clearly not supported by the facts on record.
30. The Courts have a duty to examine the attenuating circumstances, and the reasons set forth in the application for recalling any witness. In case, there is a bona fide mistake, or any fact has been unintentionally left out from the testimony, or discovery of new fact which was not earlier in the knowledge of the witness, are some of the grounds available for which the power under section 311 Cr.P.C. may be exercised for the recall of a witness. But simultaneously, on the other hand, it has to be mentioned that the application has to be moved expeditiously, so that the trial proceedings do not get procrastinated to the disadvantage of the accused, who undoubtly has a right of speedy trial. We would hasten to add that in case the said application has been filed with delay, the same is not liable to be rejected on this score alone, but it would be imperative to explain the delay to the satisfaction of the Court. In the present case, neither has the delay been explained, and also this Court is of considered opinion that the same has not been filed in a bona fide manner and therefore no ground for interference is made out with the impugned rejection order.
31. In light of the above I do not find any infirmity with the order of the trial court, and even otherwise considering the facts of the case there is no ground to interfere with the impugned order.
32. The revision lacks merit and accordingly rejected.
33. The trial Court is directed to conclude the trial expeditiously. Let a copy of this order be sent to the Court concerned.
Order Date :- 6.5.2021 A. Verma (Alok Mathur, J.)