Ram Kumar vs State Of Haryana on 6 February, 2014

[Cites 10, Cited by 0]

Punjab-Haryana High Court

Ram Kumar vs State Of Haryana on 6 February, 2014

Requests for placing on record copy of statement of PW6 as Annexure P4; copy of statement of PW7 as Annexure P5; copy of statement of PW9 as Annexure P6; copy of statement of PW10 as Annexure P7; copy of statement of PW13 as Annexure P8 and copy of statement of PW14 as Annexure P9. The same are taken on record subject to all just exceptions.

CRM stands disposed of.

CRR No.252 of 2014(O&M) The present revision petition has been filed against order dated 21.01.2014 passed by Additional Sessions Judge, Bhiwani in Sessions case Singh Omkar 2014.02.06 17:25 I attest to the accuracy and integrity of this document High Court, Chandigarh CRR No.252 of 2014 -2- No.77 dated 21.12.2012/23.01.2013 vide which request of present petitioner for further cross-examination of the witnesses after addition of charge under Section 498A IPC later on, was declined.

I have heard learned counsel for the petitioner and have gone through the whole record including the impugned order.

Briefly stated, petitioner-accused alongwith co-accused is facing trial for offence under Section 302 IPC read with Section 34 IPC. They were charged for the said offences to which they pleaded not guilty and claimed trial. Evidence of prosecution also concluded. However, vide order dated 20.01.2014, learned trial court added charge for offence under Section 498A IPC on the plea that the same was not framed earlier inadvertently. After the addition of said charge, request was made by the counsel for petitioner- accused that he be permitted to recall all the witnesses who were already examined for further cross-examination after amendment of the charge, which was declined by learned trial court vide impugned order.

It has been vehemently contended by learned counsel for petitioner-accused that as per Section 217 Cr.P.C., it was mandatory for the trial court to have summoned the witnesses already examined before amendment of the charge enabling petitioner-accused to cross-examine them on the altered charge and however, the request was declined by the trial court. It has been further contended that the right of the petitioner-accused to get the witnesses recalled for further cross-examination is an absolute right as per Section 217 Cr.P.C. and that court could refuse to recall the witnesses already examined only for the reasons that the request was made for the Singh Omkar 2014.02.06 17:25 I attest to the accuracy and integrity of this document High Court, Chandigarh CRR No.252 of 2014 -3- purpose of vexation or delay or for defeating the ends of justice and however, no such reason was given by the trial court.

It is pertinent to reproduce Sections 216 and 217 of the Code of Criminal Procedure, which read as under:-

"216.Court may alter charge.-

(1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded."

"217. Recall of witnesses when charge altered.- Whenever a charge is altered or added to by the Court after the Singh Omkar 2014.02.06 17:25 I attest to the accuracy and integrity of this document High Court, Chandigarh CRR No.252 of 2014 -4- commencement of the trial, the prosecutor and the accused shall be allowed-

(a) to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

(b) also to call any further witness whom the Court may think to be material."

In my view, as is clear from the aforementioned provisions, petitioner-accused is not having an absolute right to get the witnesses recalled for further examination after alteration of charge. Each case is to be decided on its own facts. In the present case, charge for offence under Section 498A IPC has been framed on the basis of dying declaration recorded by the Magistrate. So far as other oral evidence is concerned, brother of prosecutrix was already examined and he did not support the prosecution version. Mother was examined in defence by the accused. While declining the request of the petitioner-accused, learned trial court has given sufficient reasons. Relevant paragraph reads as under:-

"Perusal of the file shows that all the witnesses of the prosecution have already been examined. Statements of accused under Section 313 Cr.P.C. have been recorded and three DWs have already been examined by the learned defence counsel PW1 is Dr.Sachin Sehgal, who had medico-legally examined Sushila on 29.9.2012. He has nothing to do with the charge under Section 498-A IPC. PW2 is Dharmender Singh, Draftsman, who Singh Omkar 2014.02.06 17:25 I attest to the accuracy and integrity of this document High Court, Chandigarh CRR No.252 of 2014 -5- had prepared the scaled site plan Ex.P4 on the demarcation of Manish, brother of Sushila. He has also nothing to do with the charge under section 498-A IPC. PW3 HC Om Parkash and PW4 ASI Jagmal Singh have tendered their affidavits with regard to deposit of the case property in malkhana, withdrawal of the same and further depositing in FLS, Madhuban. Their cross- examination is not required after framing of additional charge under Section 498-A IPC. PW5 Constable Naveen Kumar had received special report-cum-FIR and it was delivered to the learned Area Magistrate and senior police officers by him. His cross-examination is not required to be conducted after framing of additional charge under Section 498-A IPC. PW7 EASI Mahabir Singh remained associated in the investigation of the case. After reaching PGIMS, Rohtak, an application was moved by him seeking opinion of the doctor regarding fitness of Sushila to make the statement. After that he had gone to learned Duty Magistrate/ Judicial Magistrate 1st Class, Rohtak and moved an application for recording statement of Sushila, injured under Section 164 Cr.P.C. which was accordingly recorded by the learned Magistrate. After receiving the certified copy of the statement of Sushila, FIR was registered, place of occurrence was inspected and one plastic jerry-can of kerosene oil, three embroided pilliyas and some burnt clothes were lifted from the spot, converted into sealed parcel and taken into police possession vide recovery memo. This witness has not stating anything with regard to charge under Section 498-A IPC for which he needs to be cross-examined. PW8 SI Ram Bilas had recorded formal FIR and sent the copies of FIR as special report for the purpose of delivering the same to the learned Area Magistrate and senior police officers. This witness has nothing to do with charge under section 498-A IPC. PW9 Ved Singh has Singh Omkar 2014.02.06 17:25 I attest to the accuracy and integrity of this document High Court, Chandigarh CRR No.252 of 2014 -6- deposed about reaching General Hospital, Bhiwani, collecting medical rukka and MLR of Sushila, reaching PGIMS, Rohtak on coming to know the she was referred to PGIMS, Rohtak seeking opinion of the doctor regarding fitness of Sushila to make statement, moving an application before the learned Magistrate to record statement under section 164 Cr.P.c., lifting one plastic jerrycan of kerosene oil, three pilliyas and some burnt clothes, after inspection of the spot preparing of rough site plan, calling of the photographer and Scene of Crime Team. On receipt of opinion with regard to death of Sushila from Soni Burns Hospital, Hisar he had obtained treatment papers and postmortem of Sushila was got conducted. In his lengthy examination-in-chief he has not uttered even a single word with regard to charge under Section 498-A IPC for which he is required to be cross-examined. PW10 SI Attar Singh had arrested accused Suresh Kumar and Ram Kumar. After receiving message from Police Station Civil Lines, Hisar regarding death of Sushila he had added Section 302 IPC and special report was sent. He had collected treatment papers from Soni Burns Hospital, Hisar, prepared inquest report and sent the dead body of Sushi la for postmortem examination. In cross-examination said witness was specifically asked that the case was verified by DSP Headquarter and accused Ram Kumar was arrested under Section 498-A IPC only. He has not stated anything with regard to charge under section 498-A IPC for which he is required to be cross-examined. Dr.Tej Pal Sharma PW11 had conducted postmortem examination on the dead body of Sushila. He has nothing to do with charge under section 498-A IPC. SHO/Inspector Bhagwan Singh PW12 had arrested accused Khajani Devi and prepared report under section 173 Cr.P.C. against all the accused. He has already been cross-examined by Singh Omkar 2014.02.06 17:25 I attest to the accuracy and integrity of this document High Court, Chandigarh CRR No.252 of 2014 -7- the learned defence counsel with regard to section 498-A IPC. He had admitted that as per investigation against Ram Kumar was not found involved under section 302 IPC, therefore, he had challaned him under section 498-A IPC. On further question being asked he has denied the suggestion that there was no evidence of Section 498-A-IPC against accused persons or he challaned them under section 498-A IPC wrongly. PW13 Dr.Rajiv Dabla had made endorsement regarding fitness of Sushila prior to recording of her statement by the learned Magistrate under section 164 Cr.P.C.PW14 Ms.Nidhi Bansal, the then learned Judicial Magistrate 1st Class, Rohtak had recorded drying declaration of Sushila. PW15 Pawan Kumar, Photographer had taken the photographs. PW16 Anil Kumar from Soni Burns Hospital, Hisar had brought the treatment record of Sushila. These three witness are also not required to be cross-examined with regard to additional charge under section 498-A IPC. So far as private witness including Manish Kumar, brother and Imrati mother of Sushila, since deceased are concerned, Smt.Imrati, mother of Sushila has been examined by learned defence counsel as DW1. PW6 Manish Kumar, brother of Sushila, deceased has not supported his earlier version and was turned hostile. So far as dying-declaration of Sushila is concerned, it is already on the record as Ex.P26. The opening line of her statement is that she was married 15 years ago. After her marriage she was being tortured for bringing more dowry articles by her mother-in-law Khajani Devi, father-in-law Ram Kumar, sister-in-law Mamta and brother-in-law Parmod, out of which Suresh, Khajani Devi and Ram Kumar are facing trial. It is not a new document which has been created or came into notice of the learned defence counsel at this stage."

Singh Omkar 2014.02.06 17:25 I attest to the accuracy and integrity of this document High Court, Chandigarh CRR No.252 of 2014 -8-

Hence, sufficient reasons have been given by learned trial court for refusing to recall the witnesses for their further cross-examination after addition of charge for offence under Section 498A IPC.

It cannot be said that any illegality or material irregularity has been committed by learned Additional Sessions Judge, Bhiwani in passing the impugned order, warranting interference by this Court in its revisional jurisdiction.

Hence, the present revision petition is, hereby, dismissed being devoid of any merit.

( RAM CHAND GUPTA ) February 6, 2014. JUDGE 'om' Singh Omkar 2014.02.06 17:25 I attest to the accuracy and integrity of this document High Court, Chandigarh

Unlock Advanced Research with PRISMAI

Punjab-Haryana High Court