Indian Kanoon - Search engine for Indian Law

11. Aggrieved by the said order, the appellant moved the High Court of Cuttack by way of Criminal M.C. No.1746 of 2011 in which the order impugned in this appeal came to be passed. The High Court while making reference to Section 301 of Cr.P.C., took the view that the appellant as an informant had a very limited role to play so far as the trial is concerned, that she could not have filed the petition to recall certain witnesses and that such a step was beyond the authority granted to an informant or a private person under Section 301 Cr.P.C.

14. The learned standing counsel appearing for the first respondent-State would only contend that the appellant never ever approached the Special Public Prosecutor in order to work out the remedies under Section 301 Cr.P.C. and, therefore, the order of the learned trial Judge, as well as the High Court, cannot be found fault with. The learned standing counsel only contended that PW-18 was examined on 30.07.2010 while the present application at the instance of the appellant was filed belatedly on 11.05.2011, nearly after 10 months and therefore, on the ground of delay as well the grievance of the appellant could not be redressed.

17. Having perused the said evidence with particular reference to the issue brought to the notice of this Court, we are of the firm view that the inability of the trial Court in failing to take appropriate action as and when it was brought to its notice about the fallacy in the oral version, would certainly cause a serious miscarriage of justice, if allowed to remain. Unfortunately, in our considered view, the High Court appears to have adopted a very casual approach instead of attempting to find out as to the appropriate procedure which the trial Court should have followed in a situation like this. The High Court also committed a serious illegality in merely stating that under Section 301 Cr.P.C. there is no scope for a victim as a private party to take any effective step to rectify a serious fallacy committed by a statutory witness who is supposed to maintain cent per cent neutrality while giving evidence before the Criminal Court. Where the said witness is a Judicial Officer whose version before the Court carries much weight, by virtue of his status as a Judicial Officer while acting as a statutory witness, namely, as an officer who was authorized to hold a test identification parade, it was incumbent upon such witness to maintain utmost truthfulness without giving any scope for any party to gain any advantage by making a blatantly wrong statement contrary to records. We, therefore, find serious irregularity in the orders impugned in this appeal.

18. We are convinced that the grievances as projected by the appellant as a victim, who was a victim of an offence of such a grotesque nature, in our considered view, the trial Court as well as the High Court instead of rejecting the application of the appellant by simply making a reference to Section 301 Cr.P.C. in a blind folded manner, ought to have examined as to how the oral evidence of PW-18 which did not tally with Exhibit-8, the author of whom was PW-18 himself, to be appropriately set right by either calling upon the Special Public Prosecutor himself to take necessary steps or for that matter there was nothing lacking in the Court to have remedied the situation by recalling the said witness and by putting appropriate Court question. It is well settled that any crime is against the society and, therefore, if any witness and in the case on hand a statutory witness happened to make a blatantly wrong statement not born out from the records of his own, we fail to understand why at all the trial Court, as well as the High Court, should have hesitated or adopted a casual approach instead of taking appropriate measures to keep the record straight and clear any ambiguity in so far as the evidence part was concerned and also ensure that no prejudice was caused to any one. In our considered view, the Courts below should have made an attempt to reconcile Sections 301 and 311 Cr.P.C. in such peculiar situations and ensured that the trial proceeded in the right direction.