Keeping this in view, and considering
observations of the Hon'ble Supreme Court in para Nos.7 and 8
of the judgment in the case of "Rajendra Prasad" referred above,
I find that the cause of justice cannot be allowed to suffer for the
confusion. The witness was deposing almost by end of 3 years.
The witness was clearly under pressure as he deposed that he
could not identify the person in Court as he was frightened.
When the witness was under pressure and the prosecutor also
justice cannot be allowed to suffer.
committed error due to oversight, which is human, the cause of
I find that there was no
justification to refuse to recall the witness as sought by the
prosecution.
Impugned order shows observation of the trial
Court in para 7 of order that :
"It is not the contention of prosecution that while
putting question mentioned in para 7 and calling upon
concerned accused to stand up mentioned in para No.
8, prosecutor committed mistake".
Thus, it is apparent that Trial Court knew about the
error, but only because the prosecution did not boldly stand up
to own the error, Trial Court has preferred to close its eyes to
obvious confusion on record.
It has simply recorded that as
Prosecutor asked Accused No.7 to stand up and asked witness to
identify, there was no puzzling or misunderstanding for the
witness.
It was duty of the Court to appreciate the evidence
which was recorded before it and to make an effort to arrive at
just decision so that truth prevails and the prosecution as well as
accused both get justice. The cross-examination is yet to start
and the accused are not likely to suffer if the prosecution gets
chance to further cross-examine the witness.
Whatever further
happens in the trial would be matter of record open for
interpretation or defence before any Court.
But to block
evidence from coming in would not be justified.
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
CRIMINAL WRIT PETITION NO.203 OF 2014
The State of Maharashtra,
VERSUS
Rajaram Jaywant Shelke,
CORAM:
A.I.S. CHEEMA, J.
Citation;2014 ALLMR(cri)3985
Dated;30th april 2014
Rule. Rule made returnable forthwith. Heard finally
with the consent of learned counsel for the parties.
2.
Respondents are accused facing prosecution under
Sections 302, 120-B read with Section 34 of the Indian Penal
Code and under Sections 3 and 25 of the Arms Act. The present
Writ Petition has been filed by the State, as application Exh.312,
filed by the State in the Sessions Case No.44/2011 before
Additional Sessions Judge, Ahmednagar to recall P.W.14 Kisan
Abaji Shelke was rejected by order dated 6.12.2013,
The
witness was examined by the prosecutor on 1.10.2013 and in the
course of the evidence, the witness was declared hostile and was
cross-examined
by the
State.
On 1.10.2013, the cross-
examination was deferred due to grant of application Exh.281.
On next date of 9.10.2013, for some of the accused the Court
By
ordered No Cross and rest declined cross-examination.
another application filed by the accused, vide Exh.310, recalling
of same witness was allowed by the Sessions Court for cross-
examination of the witness while the application Exh. 312 was
rejected of the State. Thus, the State is before this Court.
Perused the petition as well as affidavit-in-reply filed
3.
respondents.
by Atish Mohan Bhalsing, respondent No.12 for self and other
Heard learned A.P.P. as well as counsel for
respondent Nos.1, 2 and 5 to 14.
The learned A.P.P. has submitted that, in this matter
4.
the date of incident is 13.11.2010.
On that day, complainant
P.W.14 Kisan Abaji Shelke was going on scooter
which was
being driven by victim Prakash Kandekar who was Deputy
Sarpanch.
They were proceeding from side of Rakshe Petrol
Pump to Narayangavhan. At such time, on the way, two persons
came near them driving a Pulser motorcycle and the rider asked
as to what was the distance to Shirdi. To answer, the deceased
slowed down his scooter, but at that time, the pillion rider on the
motorcycle fired towards the head of Prakash Kandekar, who fell
down.
According to the learned A.P.P., the driver of the
motorcycle was accused No.5 Ajit Jagdish Nayar, while the
pillion rider, who had fired from pistol at the deceased, was
5.
accused No.6 Richard.
Learned A.P.P. referred to the evidence of witness to
show that the witness who was complainant, had in the F.I.R.
itself given details which showed that he could identify the
accused and which description matched with accused Nos.5 and
6. According to learned A.P.P., even if in the test identification
parade, the witness had correctly identified accused No.5 Ajit as
well as accused No.6 Richard. Learned A.P.P. submitted that, at
the time of evidence, however, the witness got confused and
wrongly Ajay Jagdish Nayar was identified, who is real brother of
accused No.5 Ajit Jagdish Nayar. According to learned A.P.P.,
the evidence itself shows that the witness was frightened at the
time of his evidence and got confused.
According to learned
A.P.P., when the application of the accused persons was being
allowed to recall the witness for cross-examination, there was no
reason why the application of the State was declined to further
record evidence of the same witness.
The learned A.P.P.
submitted that, State wanted to clarify the confusion in
identification.
6.
Learned A.P.P. relied on the case of Premkumar
Surajmal Chandak Vs. Kishor Kanhayyalal Toshniwal, reported in
2014(2) Mh.L.J. 87. It was submitted that, in that judgment, this
Court has observed that when cross-examination has yet to start,
if the witness was recalled, it cannot be said that there would be
any prejudice. Reliance is also placed on the case of Himanshu
Singh Sabharwal Vs. State of M.P. & ors. reported in AIR 2008
SC 1943, where, in para 12, it was observed as under :
"12. Failure to accord fair hearing either to the
accused or the prosecution violates even minimum
standards of due process of law. It is inherent in the
concept of due process of law, that condemnation
should be rendered only after the trial in which the
hearing is a real one, not sham or a mere farce and
pretence.
Since the fair hearing requires an
opportunity to preserve the process, it may be
vitiated and violated by an overhasty stage-managed,
tailored and partisan trial."
7.
Learned
counsel
for
respondents
has
strongly
opposed the petition. It has been submitted that, the effort is to
fill up the loop holes. Reference was made to the evidence of the
same witness regarding the identification of accused done by the
witness. According to learned counsel, now if the application to
recall of witness is allowed, the witness would be alert and thus
prejudice would be caused to the accused persons. According to
learned counsel, the order passed by the trial Court is judicious
order.
Counsel referred to the observations of the trial Court
and the trial Court found that the evidence was clear and there
is no ambiguity.
Learned counsel relied on the following
rulings:-
Pannayar Vs. State of Tamil Nadu by Inspector of Police,
reported in AIR 2010 SC 85
(2) Rajendra Prasad Vs. Narcotic Cell through its Officer in
Charge, Delhi, reported in AIR 1999 SC 2292
(3) U.T. of Dadra & Haveli & anr. Vs. Fatehsinh Mohansinh
Chauhan reported in 2006 (2) Bom.C.R. (Cri.) 613
(4) Mangesh Kisanrao Dahe Vs. State of Maharashtra &
anr. reported in 2012 (2) Bom.C.R. (Cri.) 114
(5) Fatehsinh Mohansinh Chauhan Vs. Union Territory of
Dadra & Haveli, Silvassa, Dadra & Nagar Haveli & anr.
reported in 2005(1) Bom. C.R. (Cri.) 892.
(6) Gurumeet Surjitsingh Asla Vs. Renusingh Jogisingh
& anr. reported in 2008(2) Bom.C.R.(Cri.) 924
(1)
It was submitted that the rulings show that Section
8.
311 of Cr.P.C. cannot be used to fill in lacunae in the case of
prosecution; that admissions elicited in a cross-examination
cannot be allowed to be rendered futile in re-examination; that,
re-examination should not be done so as to introduce new points
and to fill up lacuna in the case of prosecution. Learned counsel
referred to paras 6 and 7 of the judgment in the matter of
"Rajendra Prasad" (supra), which read as under :
"6.
It is a common experience in criminal
courts that defence counsel would raise
objections whenever courts exercise powers
under Section 311 of the Code or under Section
165 of the Evidence Act by saying that the court
could not fill the lacuna in the prosecution case.
A lacuna in prosecution is not to be equated with
the fallout of an oversight committed by a public
prosecutor during trial, either in producing
relevant materials or in eliciting relevant
answers from witnesses. The adage to err is
human is the recognition of the possibility of
making mistakes to which human are proned. A
corollary of any such laches or mistakes during
the conducting of a case cannot be understood as
the lacuna which a Court cannot fill up.
7.
Lacuna in the prosecution must be
understood as the inherent weakness or a latent
wedge in the matrix of the prosecution case. The
advantage of it should normally go to the accused
in the trial of the case, but an over sight in the
management of the prosecution cannot be
treated as irreparable lacuna. No party in a trial
can be fore-closed from correcting errors. 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. After
all,
function
of
the
criminal
court
is
administration of criminal justice and not to
count errors committed by the parties or to find
out and declare who among the parties
performed better."
9.
Relying on these paragraphs, the learned counsel
submitted that, trial Court found that it was not the contention
that while putting up Question and calling accused to stand,
prosecutor committed mistake. Thus, the powers under Section
311 of the Code of Criminal Procedure cannot be used so as to
fill up lacuna in prosecution.
10.
I have gone through the evidence of P.W.14 Kisan
Abaji Shelke. Para 7 and 8 of his evidence reads as under :
"7.
After about one month of the incident, I was
called at Tahasil Office, Parner for test identification
parade.
On my reaching to the Tahasil Office,
Parner, initially I was made sit in one room.
Thereafter, I was called to the place where 10-12
persons were present. After proceeding to that place
I was asked whether I can identify persons on the
motorcycle and in response to that I identified rider
and pillion rider of the motorcycle by touching to
their body with finger. They are present in the Court
today. He by showing finger pointed accused No.9
Janardhan @ Fanty @ Vinay Mhaske and accused No.
6 Richard Thomas Daniyal.
Que. Can you identify Ajay Jagdish Nayar ?
Ans. Yes. I can.
Then witness went near the accused's box and
pointed out accused No.10 Vinod Prakash Bhalerao.
(At this stage, learned A.P.P. sought
permission to declare the witness hostile and cross-
examine the witness.
Accordingly, permission
granted to cross-exam the witness. )
Cross-exam. by Mr. S.K. Patil, Public Prosecutor
8.
It is true that I had seen the accused No.7 Ajay
Jagdish Nayar twice. Firstly at the time of incident
and secondly at the time of test identification parade.
However, today I could not identify him in the Court
as I was afraid of. But after seeing the accused No.7
Ajay Jagdish Nayar to whom Public Prosecutor called
upon to stand up, I identified him. I know accused
Nos.1 and 2 Rajaram and Rahul. Today they are
present in the Court."
Keeping in view the case of the prosecution that
accused No.5 Ajit Jagdish Nayar was driving the motorcycle, and
accused No.6 Richard fired from pistol, if above para 7 of the
evidence of the witness is perused, the witness deposed
regarding the incident and showed that he could identify the
The witness then
rider and pillion rider of the motorcycle.
pointed out accused No.9 Janardhan which was wrong, but also
pointed accused No.6 Richard which was correct.
Then the
prosecutor put question "Can you identify Jagdish Nayar ?".
Keeping in view the prosecution case, there was no context at
that stage for the prosecutor to enquire about Ajay Jagdish
Nayar and then suggest that the complainant had seen accused
No.7 Ajay Jagdish Nayar twice (which he admitted) firstly at the
time of incident and secondly at the test identification parade. It
appears that, due to similarity of names, by oversight while
eliciting answers, instead of asking regarding Ajit Jagdish Nayar,
the prosecutor asked regarding Ajay Jagdish Nayar and this
appears to have lead to further confusion. Although while filing
application Exh.312 the State appears to have stated that the
witness got puzzled, simple reading of the evidence shows that
the Prosecutor, in context of prosecution case, by oversight
referred to accused No.7 Ajay instead of accused No.5 Ajit in the
heat of the moment.
Keeping this in view, and considering
observations of the Hon'ble Supreme Court in para Nos.7 and 8
of the judgment in the case of "Rajendra Prasad" referred above,
I find that the cause of justice cannot be allowed to suffer for the
confusion. The witness was deposing almost by end of 3 years.
The witness was clearly under pressure as he deposed that he
could not identify the person in Court as he was frightened.
When the witness was under pressure and the prosecutor also
justice cannot be allowed to suffer.
committed error due to oversight, which is human, the cause of
I find that there was no
justification to refuse to recall the witness as sought by the
prosecution.
Impugned order shows observation of the trial
Court in para 7 of order that :
"It is not the contention of prosecution that while
putting question mentioned in para 7 and calling upon
concerned accused to stand up mentioned in para No.
8, prosecutor committed mistake".
Thus, it is apparent that Trial Court knew about the
error, but only because the prosecution did not boldly stand up
to own the error, Trial Court has preferred to close its eyes to
obvious confusion on record.
It has simply recorded that as
Prosecutor asked Accused No.7 to stand up and asked witness to
identify, there was no puzzling or misunderstanding for the
witness.
It was duty of the Court to appreciate the evidence
which was recorded before it and to make an effort to arrive at
just decision so that truth prevails and the prosecution as well as
accused both get justice. The cross-examination is yet to start
and the accused are not likely to suffer if the prosecution gets
chance to further cross-examine the witness.
Whatever further
happens in the trial would be matter of record open for
interpretation or defence before any Court.
But to block
evidence from coming in would not be justified.
For reasons mentioned above, the Criminal Writ
Petition is allowed.
learned
District
11.
12
The order dated 6.12.2013, passed by
Judge-1
and
Additional
Sessions
Judge,
Ahmednagar below Exhibit 312 in Sessions Case No.44/2011 is
quashed and set aside. The application Exhibit 312 is allowed.
Rule made absolute. Criminal Writ Petition stands disposed of
Learned counsel for respondents at this stage makes
12.
accordingly.
request to stay the effect and operation of this order. I find no
justification for the request. The request is rejected.
Authenticated
copy
permitted
to
counsel
for
respondents.
(A.I.S. CHEEMA, J.)
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