Dismissed

M Srihari Rao at Srihari v. The State of Andhra Pradesh

Andhra Pradesh HC16 Nov 2022CRLP/3191/2022

Case brief

AI extract

What is this about?

Criminal petition challenging dismissal of application to recall prosecution witnesses under Section 311 Cr.P.C. Court held trial court correctly dismissed application as no specific reasons were given regarding nature of evidence or relevance of topography. Petition dismissed.

What did the court decide?

Criminal petition No.3191 of 2022 dismissed; pending miscellaneous petitions closed.

M Srihari Rao at Srihari Vs The State… — Civil Procedure and Limitation | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE R.RAGHUNANDAN RAO CRIMINAL PETITION No.3191 of 2022

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ORDER:

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The petitioners are accused in S.C.No.41 of 2020, on the file of III Additional Sessions Judge, Rajampeta, for offences under Section 302 r/w 34 of I.P.C.

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The case of the prosecution was that there was an argument over the operation of a water motor due to which the deceased had been assaulted by the petitioners resulting in the death of the deceased.

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In the course of the trial, P.Ws.1 to 6 had been examined by the prosecution and cross examined on behalf of the petitioners/accused.

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Thereafter, the petitioners moved Crl.M.P.No.4 of 2022 under Section 311 of Cr.P.C to recall P.Ws.1 to 3 and 6 for further cross examination. The application stated that the petitioners had failed to give certain instructions in regard to the topographical features of the scene of offence and the narration of the witnesses about the manner of the incident due to which it is necessary to recall the witnesses for further cross examination.

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This application was dismissed by the trial Court on 03.02.2022. The present petition has been filed against the said order of dismissal.

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Sri K.Venugopal Reddy, learned counsel for the petitioners would submit that the petitioners had failed to give necessary instructions to their counsel when the cross examination was going on and the failure give instructions was not willful. He further contends that the trial Judge ought to have seen that in cases of this nature, a liberal view should be taken and the witnesses should have been recalled for cross examination. He relies upon the Judgments of the Hon’ble Supreme Court in Hanuman Ram vs.

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State of Rajasthan and Ors.,¹ and V.N.Patil vs. K.Niranjan Kumar and Ors.²

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The Hon’ble Supreme Court in the aforesaid Judgments has taken the view that the object underlying Section 311 Cr.P.C is that, there should not be failure of justice on account of a mistake of either party in bringing valuable evidence on record and the determinative factor is whether it is essential to a just decision of the case. The Hon’ble Supreme Court also held that the discretion under

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1 (2008) 15 SCC 652

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2 AIR 2021 SCC 1276

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Section 311 of Cr.P.C has to be exercised judiciously and not arbitrarily and capriciously. In the present case, the application, except setting out a vague reason that the petitioners had failed to instruct their counsel properly does not set out any specifics as to the nature of the evidence that is sought to be elicited from the witnesses by way of cross examination and how the topography of the scene of offence would be relevant for a decision in the case.

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The trial Court after considering these issues and observing that the application does not set out any specific reasons for recall of the witnesses, had dismissed the application.

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