Partly allowed

Mahesh Kumar v. State

Rajasthan HC10 Feb 2012CRLMP/224/2008

Case brief

AI extract

What is this about?

The High Court quashed an order recalling already cross-examined prosecution witnesses to plug evidence gaps, holding it violated cross-examination principles. However, the recall of a new, uneexamined material witness was upheld.

What did the court decide?

Impugned order quashed regarding recall of PW-5 and PW-7; upheld regarding summoning of new witness who received samples at S.P. office, Churu.

Mahesh Kumar Vs State — Criminal Trial and Appeal | Rajasthan HC (2012)

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S.B. CRIMINAL MISC. PETITION NO. 224/2008 (Mahesh Kumar Vs. The State of Rajasthan)

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DATE OF ORDER

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: 10 February, 2012

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HON’BLE MR. JUSTICE SANDEEP MEHTA

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Mr. B.S. Rathore, for the petitioner. Mr. Panney Singh, Public Prosecutor.

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The present misc. petition has been filed by the petitioner being aggrieved by the order dated 29.01.2008 passed by the learned Special Judge, NDPS Cases Court, Ratangarh in Sessions Case No.07/2005, whereby, the learned Special Judge has recalled and summoned certain prosecution witnesses while exercising his powers under Section 311 Cr.P.C.

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Briefly stated the facts necessary for the disposal of this misc. petition are that the petitioner was facing trial in the court of the learned Special Judge, NDPS Act Cases, Ratangarh and during the pendency of the trial, the learned Special Judge has suo moto by the impugned order directed for recalling of certain prosecution witnesses who were concerned with the carrying of the samples of the contraband from the police station to the chemical examiner. It is the aforesaid order which is under challenge in the instant misc. petition.

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Assailing the order impugned, learned counsel for the petitioner submits that the witnesses who were directed to be recalled for examination had been subjected to cross examination and such cross examination of the witnesses revealed that grave discrepancies were brought forward in the testimony of the witnesses during the course of their cross examination and the order which has now been passed by the

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learned trial Judge virtually amounts to setting at naught the cross examination conducted of the accused and thus the order impugned cannot be sustained. It is submitted that the order impugned clearly amounts to abuse of the process of court and thus the same deserves to be quashed.

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Per contra, learned Public Prosecutor has supported the order impugned passed by the learned trial Judge and states that the lacunae ought not to be left in the trial and it is the domain of the learned trial Judge to clarify the anomalies appearing in the prosecution evidence.

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I have heard learned counsel for the parties, perused the order impugned and have given thoughtful consideration to the arguments advanced at the bar.

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A perusal of the order impugned reveals that during the course of examination of the witnesses PW-7 Raghuveer Singh, the Malkhana Incharge and the carrier of the samples PW-5 Bhanwar Lal, a discrepancy arose as regards the fact as to whether the specimen memo of the seal was forwarded to the FSL or not. The learned trial Judge has directed to re-summoning of the witnesses PW-5 Bhanwar Lal and PW-7 Raghuveer Singh and the person who received the samples in the office of the Superintendent of Police on 13.10.2005.

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A perusal of the order impugned reveals that the learned trial Judge has virtually taken upon himself to set at naught the discrepancies which the accused brought forward by the cross examination of the witnesses. It is true that while exercising the powers under Section 311 Cr.P.C. the learned trial Judge has inherent powers to see that the lacunae are not left in the case but the said powers cannot be used for the purpose of filling up

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the deficiencies which have been brought to fore in the cross examination of the witnesses. Had it been the case that certain facts were missed out whilst the witnesses were being examined then of course the recalling of the witnesses was permissible but in the present case the accused by way of his cross examination has tried to prove that the specimen memo of the seal was not forwarded from the police station to the office of the Superintendent of Police, Churu. Thus, it was a big discrepancy in the prosecution evidence which was elicited by the cross examination conducted and if the witnesses are now recalled for the purpose of covering up these discrepancies then it virtually amounts to permitting the prosecution to plug the loopholes which have been brought to fore by the cross examination conducted on behalf of the accused thereby virtually defeating the very purpose of the cross examination.

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In the opinion of this Court, certain facts have been elicited in the cross examination of the witnesses PW-5 Bhanwar Lal and PW-7 Raghuveer Singh which go to the root of the matter and now by way of recalling of the witnesses, if the prosecution is permitted to make redundant the cross examination thus far conducted then it virtually amounts to filling up of the lacunae or the latent wedges in the prosecution case. But so far as the witness who received the samples in the office of the Superintendent of Police, Churu is concerned, he in the opinion of this court is a material witness whose testimony appears to be necessary for unfurling the correct facts in the case. It appears that this witness was not examined at the trial at all.

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Resultantly, this misc. petition succeeds in part. The order impugned dated 29.01.2008 passed by the learned Special

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Judge, NDPS Act Cases Court, Ratangarh in Session Case No.07/2005 is quashed so far at it relates to directing recalling of the witnesses PW-5 Bhanwar Lal and PW-7 Raghuveer Singh. But the same is upheld as regards the direction to summon the witness, who received the samples in the office of Superintendent of Police, Churu.

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(SANDEEP MEHTA), J.

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ms rathore

Mahesh Kumar v. State

Case brief

What is this about?

What did the court decide?

Mahesh Kumar v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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