Allowed

Y. Ramesh v. State of Telangana and another

Telangana HC9 Nov 2020CRLP/828/2020

Case brief

AI extract

What is this about?

Petitions under Section 482 Cr.P.C. by the sole accused in a murder trial challenged orders permitting the prosecution to recall PW.3, who had turned hostile, and to summon her daughter, an unlisted witness. The High Court allowed both petitions and quashed the orders, holding that unsupported allegations of threat could not justify the exercise of power under Section 311 Cr.P.C.

What did the court decide?

Both criminal petitions allowed; impugned orders dated 16.12.2019 in Crl.M.P. Nos. 154 and 153 of 2019 in S.C. No. 12 of 2014 quashed.

Y. Ramesh Vs State of Telangana and another — Quashing and FIR | Telangana HC (2020)

¶1

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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IVONDAY, THE NINTH DAY OF NOVEIVBER

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rWO THOUSAND AND TWENTY

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PRESENT

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THE HONOURABLE SRI JUSTICE K. LAKSHMAN

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CRIMINAL PETITION NO: 828,AND 945 oF 2020

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Common CT in both Criminal Petitions

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Between:

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Y.. Ramesh, S/o Late Ramaiah, aged about 35 years, Occ- Auto Driver, R/o H.No.10/516, D.C.S.R. cotony, Opp- RTC Bus stand, poddatur village, XiOapa District, Andhra Pradesh

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...Petitioner/Accused

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AND

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State of Telangana, through represented by its Public Prosecutor, High Court at Hyderabad for the State of Telangana

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Boga Krishna S/o B. f.ama Swamy, aged about 59 years, Occ- Welding shop, R/o H.No.1-7-78012, Ram Nagar, Hyderabad

¶14

...RespondenUComplainant

¶15

Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the fVlemorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the proceedings quash the order dated.16.'1 2.2019 in Crl.M.P.No.'1 54 of 2019 in SC No.12 ol 2014 on the file of Xlll Additional District Judge cum Xlll Additional Metropolitan Session Judge, Cyberabad, Ranga Reddy District at L.B. Nagar.

¶16

l.A. NO: 1 OF 2020

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to grant stay of all further Proceedings including the appearance of the petitioner in SC No.12 of 2014 on the file of Xlll Additional District Judge cum Xlll Additional I,4etropolitan Session Judge, Cyberabad, Ranga Reddy District at L.B. Nagar.

¶18

CRIMINAL PETITION NO: 945 OF 2020

¶19

Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the l\rlemorandum of Grounds of Criminal Petition, the High Court may be pleased to quash the proceedings quash the order dt 16.12.2O19 in Crl.M.P.No.153 of 2019 in SC No.12 of 2014 on the file of Xlll Additional District Judge cum Xlll Additional Ir,4etropolrtan Session Judge, Cyberabad, Ranga Reddy District at L.B. Nagar.

¶20

l.A. NO: 1 OF 2020

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Petition under Section 482 of Cr.P.C^praying that in the circumstances^stated in the Memorandum of Grounds of Criminal Petition, the High Court may be^pleased to grant stay of all further Proceedings including the appearance of the^petitioner in SC No.12 of 2014 on the file of Xlll Additional District Judge cum Xlll Additional l\rletropolitan Session Judge, Cyberabad, Ranga Reddy District at L.B. Nagar.

¶22

This Petition coming on for hearing, upon perusing the lvlemorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri lV. Radha Krishna for Sri Pushadapu Subba Rao, Advocate for the Petitioner and the Public Prosecutor on behalf of the Respondent No.1

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The Court made the following: COMMON ORDER

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Crl.P. Nos.g28 & 945 ,rf ;Lri

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THE HONOURABLE SRI JUSTICE K. LAKSIIMAN CRIMI\ AL PEl'I TIO N Nos .828 A ND 9J5 o F 2020 cto\llIONO RDI]IT:

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Mr. Y. Rarnesh, sole accused in S.C. No.i2 of 2014 on rhe file of the XIII Additional District & Sessions Judge _ cum _ XIII Additional Metropolitan Sessions Judge, Ranga Reddy District, cyberabad at L'B. Nagar, has filed crl.p. No.g2g of 2020 under Section 482 of the Code of Criminal procedure, 1973 (for short 'Cr.P.C.'), to quash rhe order dated 16.12.2019 passed in Crl.M.p. No.l54 of 2019 in S.C. No.12 of 2014 filed under Secrion 3lt of Cr.P.C. to recall PW.3 for re-examination. Whereas. Crl.p. No.945 of 2020 is filed by the very sar.ne accused under Section 482 of Cr.p.C. to quash the order dated 16. 12.2019 passed in Crl.M.P. No.l53 of 2019 in S.C. No. 12 of 2014 filed under Section 311 of Cr.P.C. to sunllron Ms. Y. Pavani lor examination.

¶27

Heard Mr. M. Radha Krishna, learned counsel lepresentinu Mr. Pushadapu Subba Rao, Ieamed counsel for the petitioner in both petitions, and learned Public Prosecr-rtor appearing on behalf ol respondent No.1 - State. Despite service of notice, none appears fbr respondent No.2. Perused the entire rnaterial available on record

¶28

The petitioner herein is the sole accused in S.C. l2 of 2014 The olfence alleged against him is under Section 302 o1'lPC. The *'ii'e of petitioner - accused deposed hcrsell as PW.3 and tr.rlned hostile, adclressed a letter on 24.09.2019 to the I)ublic I)rosecutor

¶29

KL.J Crl.P.^{Nos 828 & 9'15 of 2020}

¶30

¶31

stating^{thaton the date of her examination'she was threatenedby the} accused^{that he would kill her children' who were studyingby staying} in the Hostel^{and, therefore, she could not Support the case of} prosecution.^{Since her childrenare stayingwith her now' she wants to} give further evidence.^{Basing on the said letter, the prosecutionhas} iiled a^{petition under Section 3 1 1 of Cr'P'C' vide Crl'M'P'No'1 54 ol} 2019 to r.ecall^{her fbr further examination. The plosecutiotl has also} flled another application^{vide crl.M.P. No.l53 of 2019 to strrnmol'r} PW.3's daughter, Y. Pavani,^{lor her examination stating that daughter} of PW.3 is an eye-witness to^{the incidentand, therelore,her evidetlcc'} is very much important and crucial^{to the case of prosecution.}

¶32

The present petitionel being sole accr.rsed opposed the said petitions on the grounds that the prosecution tlled the said petitions with an intention to protract the proceedings and to get the evider-rce in its lavour and in the event the petitions are alloq,ed. much pre.juclice would be caused to him.

¶33

The trial Cour1, after hearing both sides, allowed the saicl two petitions vide order dated 16.12.2019 in Crl.P. Nos. 153 and 154 of 2019.

¶34

Aggrieved by the said orders, the sole accused preferred the present petitions to quash the said orders.

¶35

KI-,J Crl.P. Nos.828 & 945 of2020

¶36

¶37

Since the parties are one and the same and facts of the case arise out of the very same crime, both the Crirninal petitions are being disposed of by way of a common order.

¶38

As far as Crl.P. No.828 of 2020 is concerned, Mr. M. Radha Krishna, learned counsel for the petitioner, would subrnit that Crl.M.P. No.l54 of 2019 flled under Section 3l I of Cr.P.C. is not maintainable as the prosecution has failed to produce any docuntent and filed the said petition at the stage of hearing. But, the trial Court allowed the application without appreciating the fact that PW.3 turned hostile, cross-examined by the Public Prosecutor and without therebeing any sutlcierit cause for filing said application after the lapse of six n-ronths. Therefbre, according to tlre lealned coLrnsel lor the petitioner, the impugned order is erroneous in lar.v and, accordingl_v-, he sor.rght to quash the same. In support of his contentions, the learned counsel for the petitioner has placed reliance on the decision rendered by the High Court of Jammu and Kashmir at Jammu in Masoom Hussain Shah v. Stater and the principle held by the Hon'ble Supreme Court in Rajaram Prasad Yadav v. State of Biha12.

¶39

As far as Crl.P. No.945 of 2020 is concerned,^{the learned} counsel lor the petitioner^would submit^{that the daughter of I']W.i,} Ms. Y. Pavani, is neither a listed^{witness, nor shown her nameeitl.rer}

¶40

t. (:oti) r+ scc +r,t

¶41

'U O f S (Ol Suprerne^(J&K) 6i l

¶42

KL.J Crl.P. Nos.828^{& 945 o12020}

¶43

in the complaint or^{in the charge sheet. Despitethe same and without} appreciating the fact^{that she is not an eye-witness, the trial Courthas} allowed Crl.M.P. No.153^{of 2019,whichis contrarYto the scope and} ambit of Section³¹ 1 of Cr.P.C.^{In supporl of his contention,the} leamed counsel for the^{petitionerhas placedreliance on the decisions} in: i) V. Vani v. V.B.V.S.M.K' Prasadr; ii)^{Laveti Kamala v. State} of A.P., rep.by P.S. Alwala; and iii) State by^{Inspectorof Police v.} S. Sankarans.

¶44

On the other hand, the leamed Public Prosecutor^would submit that in both the Criminal Petitions, the trial Court has rightly allowed the said applications to recall PW.3 fbr lurther evidence and to summon her daughter lor better adjudication of the case. The offence alleged against the petitioner herein is under Section 302 ol lPC. which is a serious offence. The said orders are reasoned and the trial Court by relying upon the principle held by the Apex Court in Rajaram Prasad Yadav2, allorved the said applications. He u,ould I'urthcr submit that the trial Court having considered the scope and arnbit of Section 3l 1 of Cr.P.C. only. allowed the saicl applications and there is no erlor in it and accordingly he sought to dismiss the present petitions. In support of his contentions, the leamed Public Prosecutor has relied upon the decisions in Fatehsinh Mohansinh Chauhan v. Union Territory of Dadra and Nagar6, Chemo Steels

¶45

2012 (3) ALT (Crl.) l3 I (A.P.)

¶46

2002⁽ I ) ALT (Crl.) 333 (A.P.)

¶47

2005 cd.L.t.1414

¶48

2004 Crl,L.J. 150

¶49

KL.J Crl.P. Nos.828 & 945 ol2020

¶50

¶51

Limitetl v, State of Andhra PradeshT and Rama Paswan v. Statc of ,lharkhands

¶52

I I. In view of the above rival subrnissions, the question that alises fbr consideration bv this Cor-rr1 is:

¶53

Whether the irnpugned orders, both dated \6.12.2019 passed by the trial Courr in Crl.M.P. Nos.153 and 154 of 2019 in S.C. No.12 of 2014 allowing the same filed under Section 3 1 1 of CI.P.C. are sustainable in law and on facts?

¶54

As stated supra, the petitioner herein is sole accused in S.C. No.12 of 2014 and the offence alleged against him is under Section i02 of IPC. During trial, PW.3, wife of the petitioner - sole accr.rsed was examined on 05.03.2019 and she was declared hostile. The learned Public Prosecutor cross-examined her. Thereafter, she has addressed a letter dated 24.09.201 9 informing the Public Prosecutor tl-rat sl-re intends to give further evidence. Basing on the said Ietter', the Prosecution has filed an application under Section 31 1 of Cr.P.C. vide Crl.P. No.154 of 2020 in S.C. No.l2 of 201,4 to recall her for reexamination. Vide order dated 16.12.2019, the tlial Court allowed the said application. Feeling aggrieved by the sarne, the petitioner - was accused filed Crl.P. No.828 of 2020 contending that PW.3 declared hostile on 05.03.2019, cross-examined by the Public Prosecutor, nothing incriminating was found against the^accttsed. Alier the lapse o1'six urorrths, the^ver',v satre u'itness i.e.,^I)W.3cannot

¶55

. 2005 Crl.l-.J.716

¶56

'.^{(2007) llscc r9l}

¶57

KL.J Crl.P. Nos.828 & 945 o12020

¶58

be recalled under Section 311 ol Cr.P.C.^{to give furtherevidence b1} way ol re-exarnination retracting her statement under Section^I 6'l'of Cr.P.C.

¶59

Perusal of the petitions filed under Section 3l 1 of Cr.P.C. vide Crl.M.P. No.153 and 154 of 2019 would reveal that the prosecution has examined all the witnesses on its behalf except the Investigating Officer. The prosecution examined the wife of accused as PW.3. Since she did not suppoft the case of prosecution, she was declared hostile. After the lapse of six months, she has addressed a letter dated 24.09.2019 to the Public Prosecutor stating that she intends to give fur'ther evidence. The petitions would furlher reveal that on the date of examination of PW.3, she was under the influence ol threat caused by the accused, that her children were studying in Hostel at Vijayawada and her eldest daughter. was studyir.rg 9'h Class and was attacked by the accused. She was threatened by the accused that he would kill them if she deposes against him in the Court. Now, her children are in her custody and out of threat and, therefore, she wants to depose the fact about the commission of offence before the Court as herself and her children are eye-witnesses. Thus, the evidence of PW.3 and her eldest daughter are vital and irnportant for the prosecution to meet ends of justice. Whereas, in Crl.M.P. No. 153 of 2020, it is stated by the prosecution that at the tirne of off'ence. eldest daughter of PW.3, Y. Pavani, who is also eye-witness, was aged only 9 years and she was not cited as a witness by the police,. But,

¶60

8 Crl.P. Nos.828 & ,45 ,ffl\r;

¶61

---aEEr-.-.-

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now She is 14 years and in a fit position to depose about the commission of offence and the threat caused by the accused and, therefore, her evidence is just and necessary.

¶63

With the said contentions, the prosecution has filed the said petitions under Section 31 I of Cr.p.C. to recall pW.3 for re_ exarrination, and to summon the daughter of pW.3, y. pavani. for erantination.

¶64

The petitioner herein has filed counters in both the petitions, contending that earlier the prosecution has filed similar application before the trial Court on25.09.2019 vide Crl.M.p. No.l31 ol 2019 to lecall PW. 1 for re-examination and to pennit the prosecutiorr to examine Ms. Y. Pavani. The accr-tsed has also filed counter resisting the said application and relielsought thelein. Bur, at the stage o1' healing, the prosecution has withdrau'n the said application on 13.11.20i9 endorsing it not pressed and, accordingly, the same^.'vas disrr-rissed as not pressed. Now, again the prosecution has llled the similar petitions, which are not maintainable in law.

¶65

The allegation levelled against the petitioner - accLlsed is that he has murdered the second husband of PW.3 - Srrt. P. Susheela (LW.4). The accused is the first husband of PW.3. Therefore, the police have filed charge sheet against the petitioner - accused for the ollence under Section 302 oflPC.

¶66

Kl..l Cr.P.^{Nos.828 & 915oL 2010}

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The^{Apex Court had an occasion to deal withthe scope alld} ambit of Section^{31 I of Cr'P'C' in RajaramPrasad Yadav2' wherein} the offences^{alleged against the accused are under Sections324 and} 307 read^{with 34 of IPC. During trial, the de facto complainant} examined^{as a witness and gave evidencecategorically stating that he} never^{gave anystatementto the police;that nobody beat him on the} dateofoccurrenceandthathewasnothitbyanybullet.Hefurther stated in his evidence^{that he accidentallyfell into the hole of the} latrine, while looking into^{it and that someinstrument, which was} lying inside the hole, caused^{the injury on his body. He firrther stated} that l-ris sons were not present at the^place of occurrence'^The evidence of the prosecution was closed and thereatter the evidence ol the def'ence was colnrrenced. At that stage, the de.facto complainant has flled an application under Section 3 I I of Cr'.P.C. flve rnonths after his exarnination stating that the evidence given by him earlier was not out ol his own free will and volition. but due to threat and coercion at the instance of the accused persons, including the appellant therein.

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It was contended on behalf of the de/itcto complainant that the accused persons posed a threat by going to the extent ol elirninating hirn and that such threat was meted out to hirn or-r 15.3.2007, when he was kidnapped from his wheat field by the accused, along with two unknown persons. With the said grounds and contentions, lhe defacto complainant has filed the application, and the trial Court has dismissed the said application. The matter was carried

¶70

KL,J Crl.P. Nos.828 &.945 of 2020

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to the High Court, and the High Court has set aside the order passed by the trial Court and allowed the petition filed under Section 31 I of Cr.P.C. Then, the matter carried to the Hon'ble Supreme Colrrt. and the Hon'ble Supreme Court upheld the order of the trial Court b1. setting aside the order passed by the l{igh Cour1. 1-he Apex Court lurther held that there are no bona fides in the application of the c1e .fac'to^{complainant,while seeking the pennission of the Courlunder} Sectior.r 3l I Cr.P.C. tbr his re-exan.rination by merely alleging that on the earlier occasior-r he turned hostile under coercior.r and threat meted out to hin-r at the instance of the appellant and other accused.

¶73

It was quite apparent that the complaint, whicl.r emanated at the instance of the appellant based on the subsequent incident, rvhich took place subsequently which resulted in the registration of the FIR seem to have weighed with the de facto corrplainant to come foru'ard with application under Section 3l I Cr.P.C., by way ol an afterthought. If really there was a threat to his lit-e at the instarrce of the appellant - accused and the other accused, as rightly noted by the Couft below, it was not known as to uiiy there rvas no imnrediate rel'erence to such coercion and undue influence meted out against him at the instance of the accused, when he had every opportunity to mention the same to the leamed trial Judge or to the police officers or to any prosecution agency. Such an indifferent stance and silence maintained by the de facto complainant and the categorical statement made before the Court belou, in l-ris cvider-rce as appreciated by the

¶74

¶75

KL.J Crl.P. Nos.828 & 9J5 of2020

¶76

¶77

Court belou' was in the^{proper perspective, rvhile rejecting the} application of the de facto conplainant filed^{under Section 3l I} Cr.P.C. In the considered opinion of Hon'ble Supreme Cour1,^{the trial} Court, lrad the opportunity to observe the demeanour of the^de Jitcto complainant, while tendering evidence which persuaded the trial Couft to reach the said conclusion and that deserves t.nore credence while exarrining the correctness of the said order passed by the trial Court. By observing so, the Apex Court has quashed the order olthe High Court and r-rpheld the order passed by the trial Court rejecting the application under Section 3 I I of Cr.P.C. to recall the witness.

¶78

In Masoom Hussain Shahr, the High Court of Jamrnu and Kashmir had an occasion to deal with the scope and ambit of Sectior.r 3ll of Cr.P.C. In the said case, the offences alleged against the accused are under Sections 376, 452 and 323 of the Jammu and Kashmir State Ranbir Penal Code, 1989. The prosecutrix was declared Hostile and she was also later on cross-examined by the learned Public Prosecutor. In the cross-examination. she fairly stated that the accused has neither committed any offence nor she knows the accused. Aliel a period of two months, tl-re prosecr.rtrix movcd an application through Public Prosecutor under Section 540 Cr.P.C. The said application was strongly opposed by the accr.rsed by rvay ol objcctions and also on the basis ol record annexed, and the same \as allowed by the trial Court. The said order was carried to the l-ligh Court of Jarnmu and Kashmir. The High Court relying on the

¶79

KL.J Crl.l,. Nos.828 & 945 o, 2020

¶80

¶81

principle laid down by the Apex Cou( in Rajaram Prasad Yadav2 held is as under:

¶82

''15. Fair trial is the main ob.ject of criminal procedure, and it is the duty of the coufi to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. and therefore. fair trial includes the grant ol lair and proper opportunities to the person concerned. and the salre nrust be ensured as this is a constitutional, as rvell as a human right.^-l-hus, under no circumstances can a person's right to f-air trial be^jeopardized. Adducing evidence in support of the delence is a valuable right. Denial ol such right would arnount to the denial of a f'air trial. Thus, it is essential that the rules ofprocedure that har e been designed to ensure justice are scrupulously lollowed, and the ooLlrt must be zealous in ensuring that there is no breach of the sarne. "

¶83

2l . In the said case also, the application filed under Section 311 of Cr.P.C. was on the ground that witness gave hel previous statement under force and threat to life under the influence ol drucs. -l'he High Cor,rrt of Jammu and Kashrnir has also relied upon the principles laid down by the Apex Court while dealing r,,'ith application r.rnder Section 3l I of Cr.P.C. which are as follows:

¶84

"23. Fronr a conspectus consideration o1'tlic above decisions, u'hile dealing u,ith an application r.rnder Section 3l I Cr.P.C. read along with Section 138 of the Evidence Act, we leel the following principles will have to be borne in r-nirrd bv the Courts:

¶85

KL.J Crl.P. Nos.828 & 945 of 2020

¶86

¶87

a) Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Seclion 311 is noted by the Couft for a just decision of a case?

¶88

b) The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the^judgment should not be rendered on inchoate, inconclusive speculative presentation of facts. as thereb) the ends ol .justice^{wouldbe defeated.}

¶89

c) If evidence of any witness appears to the Coufl to be essential to the^just decision of thc case, it is the powcr ol' tlie Court to summon and examine or recall and reexamine any such person.

¶90

d) 1'he exercise of power under Sectior.r 3 I I Cr.P.C. should be resoftcd to only with the object o1'finding out the trull or obtaining proper prool fbr such Iacts. wliich nill leacl to a.just and correct decision of the case.

¶91

e)^'Ihc exercise ofthe said power cannot be dubbed as lilling in a lacuna in a prosecution case. unless thc tacts and circur.nstances of the case makc it apparcnt that the cxcrcise of'power by the Coun would result in causing serious prejudice to the accused. resulting in miscarriagc o lj ustice.

¶92

1)^'l'he wide discretionary por.r'er should bc exercisccl judiciously and not arbitrarily.

¶93

g) The Court must satisfy itself that it was in everv respect essential to examine such a witness or to recall him lor f'urther examination in order to arrive at a just dccision ol the case.

¶94

h) The object of Section 3 I I Cr.P.C. sirnultaneously impose s a duty on the Couft to determine the truth and to render a just decision.

¶95

i) The Court arrives at the conclusion that additional evidence is necessary, not because it *,ould be impossible to pronounce the^judgment without it. but becar.rse there would be a I'ailure of justice without such evidence being considered.

¶96

j) Exigency of the situation, I'air play and good scnse should be the sal'e guard, while exercising the discretion.^'l'he Court should bear in mind that no pafty in a trial can bc lbreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be nragnanimous in pennitting such mistakes to be rectified.

¶97

k) The Court should be conscious o{'the position that aftcr all the trial is basically for the prisoners and the Coult

¶98

KI.,.J Crl.P. Nos.828 & 945 o12020

¶99

¶100

should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results,

¶101

l) 1he additional evidence must not be leceived as a disguise or to change the nature of the case against any of the party.

¶102

rr) The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be gerrnane to the issue involved and also ensure that an opportunity of rebuttal is giveli to the other party.

¶103

n) The porver under Section 3ll Cr.P.C. nrust therefore. be invoked by the Couft only in order to mcct the ends of justice lor strong and valid reasons and the sarre must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused. the victim and the socierl and. therefore. the grant ol fair and proper opportunities to the persons concerned. must bc ensured being a constitutional goal, as rl,cll as a huntan right."

¶104

The High Court of Jammu and Kashmir also held that it is evident tl.rat plea of victim on the earlier occasion, she turned l.rostile lunder coercion and threat meted out to l-rer at the instance of accused. cannot be a ground for recalling her and re-examine her; as already noted that she was identified by her husband and another at the tinle of recording of her previous statement before Courl below. At the time ofher evidence in Couft or subsequent to her evidence she never made any complaint to the Courl or any police officer that accused persons had yielded any pressure upon her to tum hostile to the prosecution and to give a go by to the prosecution case. When there is no anrbiguity in previous statement or nothing to explain, to put question in re-exam inatior-r, the witness cannot be recalled or reexamined. The sole object of witness to give change to the version

¶105

Kt-.J

¶106

Crl.P. Nos.828 & 915 ol2O2O

¶107

¶108

already given in the Court is not the object of Section 540 Cr.P.C. The le-trial cannot be asked under the plovisions of Section 5.10 Cr.P.C. With the said observations, the High Court of Jamrnu and Kashmir has set aside the order passed by the trial Court allowing the application filed under Section 3 I 1 of Cr.P.C

¶109

In Fatehsinh Mohansinh Chauhan6 relied upon bl the learned Public Prosecutor, the Bombay High Court had an occasion to deal with the power of Courl below to summon material rvitness or examine person present under Section 311 of Cr.P.C., and also lacunas of prosecution. In the said case also, the application was filed under Section 311 of Cr.P.C. by the prosecution on the grour.rds that the witnesses sought to be recalled were threatened by the accused. In the said context, the Bombay High Court held as under:

¶110

" l 8. The main grievance with regard to the ilnpugned order ll,as that if the rvitnesses are recalled and examined again in supporl of the prosecution, it would be tilling up lacuna in the prosecution case which. according to the learned Cor.rnsel lor the petitioners. is not pcrrnissiblc under the provisions of Section 3l I ol the Cr.P.C. Section 3 1 I ol Cr.P.C. is as under :-

¶111

"31 l. Porver to summon matcrial u,itness. or cxarnine person present.

¶112

An1' cor.rrl rray, at any stagc ol anf inquiry, trial or other proceeding under the Code, surnmon any person as a witness. or examine any person in attendance, though not sumrnoned as a witness. or recall and re-examined any person already examined. and the coun shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

¶113

rx-

¶114

KI-.,I Crl.P. Nos.fl2lt & s.l5 ol'1010

¶115

¶116

ln vierv o{'these provisions, it is the discretion of thc Clourt could bc oxcrcise at an)'stage olany inquirl. trial or other procccding to summon any person as the witncss or examine any person in attendance, though not sumrnoned as a rvitness or recall and re-examine any witness. 1-he second part of Section 311 is rnandatory in the sense that the Court shall have to summon and examine or recall and e-examine any person if his evidence appears to the Court to be essential to the^just decision of the case. Thus, the Sessions Court has powers to recall and re-examine rvitness already examined at any stage ol the proceedings. In the first part, it is the discretion of the court. But in second part when it appears to the Court that the evidence of particular person is essential to the^just decision of the case, then the Court shall have to sunlmon or re-call and re-examine such person. l'herefore, the order ol the Sessions Court in recalling and re-exarnining lhe atbresaid fbur witnesses ivas within his discretion.

¶117

19.^'l'he subnrission made on bchall' of the petitioners however is that the exercise ol this discretion b1, the leamed Sessions Judge was not only pre-judicial to thc petitioners - accused persons, but was also helped the prosecution to till up the lacuna in the prosecution case. It ll'ould, therefbre, be necessary to understand u'hat is meant by lacuna in the prosecution case. The Apex Court had occasion to explain the meaning ol the lacuna. In the case ol Rajendra Prasad v. Narcotic Cell. The relevant observations o{'the Apex Court are as under :-

¶118

"Lacuna in the prosecution must be understood as the inherent u,eakness or a latent rvcdge in thc matrix ol thc prosecution case.^'[te advantage ol- it should nornrally go to the accuscd in the trial ol' the case. but an oversight in the managerrent ol' the prosecution cannot be treatcd as irroparablc laouna. No party in a trial can be Ibreclosed fiom correcting errors. In proper cvidence was not adduced or a relevant rraterial was not brought on

¶119

KL.J Crl.P. r.{os.828 & 945 o12020

¶120

¶121

record due to any inadvertence, the court should be magnanimous in permitting such mistakcs to be rectified. After all, lunction ol the crirnina court is adrninistration of criminal^justice and not to count crrors oornmitted by the parlies or to flnd out and dcclare u,ho among the pafties perfbrmed bctter."

¶122

l'hus. it is clear that the lacuna is not sorrething *hich is (hrough oversighl in the marragemcnt ol- the prosecution or irradvertencc r.vith rvhich proper evidence was not adduccd *'herc in such cases thc Court is expected to tre rnagnanimous in permitting such mistakes or inadvertence. 'i'he lacuna in the prosecution case has a rreaning of inherent rveakness in the prosecution case. The prosecution case is one which is submitted along with the charge-sheet. If such lacuna is left at the level of the filing of chargesheet. that means if there is any lacuna in the investigation. that lacuna cannot be overcolne by the prosecLrtion during the course oltrial or by taking recourse to the provisions ol Section3ll ofCr.P.C.

¶123

What rvas happened in the instant case is that the rvitnesses had turned hostile by reason ol'the lact that thel wcre threatened by the accused persons. Now those vcry rvitnesses are coming lbrrvard by making aflldavits as to rvhy they'did not support the prosecution earlier and as to '"vhv^{they now want to support the prosecution. Whatis} material to be noted is that their statement recorded under Section l6l of the code stands as they are subrnitted along u,ith the charge-sheet. Therefore. il these rvitnesses are allowed to depose before the Coufi as they have stated before the police in their statement under Section 161 ol the code, that would not be filling up the lacuna in thc prosecution case. Therefore, the submissions made by the learned Counsel for the petitioners that recalling the witnesses and re-examining them would be allowing filling up lacuna in the prosecution case is not acceptable."

¶124

KI,.J Crl.P. Nos.828 & 945 of 2020

¶125

¶126

In Rama Paswans, the Hon'ble Supreme Court had an occasion to exanrine the scope and ambit of Section 3l I of Cr.P.C and held as under:

¶127

"5. The scope and ambit of Section 3II of the Code, which reads as fbllows, needs to be noted:

¶128

3l 1. Power to sunlmon material u'ilness. or exanrine person present. - Any court may. at any stage of any inquiry, trial or other proceeding under this Code, surnmon any person as a witness. or cxamine any person in a attendance, though not summoned as a witness, or recall and re-examine any person already exarnined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the^just decision of the case.

¶129

The section is manil'estly in two parts. Whereas the rvord uscd in the first part is "rnay". the second part uses "shall". In consequcnce. thc flrst part gives purelv discretionarv authoritl, to a crirninal court and enables it at anv stage ol an enquiry, trial or proceeding under the Code (a) to summon anyone as a rvitness, or (b) to examine any person present in the court, or (c) to recall and re-examine an), person r.r,hose evidence has already been recorded. On the other hand. thc second part is rnandatorv and compels the courl to take any of the afbrementioned steps if the nc.,v evidence appears to it essential to the.just decision of the case. This is a supplementary enabling provision, and in certain circumstances imposing on the court the duty ol examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at r.r,hich the powers of the court should be exercised, or with regard to the manner in which it should be exercised. it is not only the prerogative but also the plain duty of a court to examine such of those witnesses as it considers absolutely necessary fbr doing justice betrveen the State and the subject. There is a duty cast upon the court to

¶130

KL.J Crl.P. Nos.828 & 945 of2020

¶131

¶132

arrive at the truth by all lau'ful means and one of^such means is the examination of rvitnesses of its ou'n accot'd rvhen for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to spcak important relevant facts.

¶133

The object underlying Section 311 of the Code is that there may not be lailure of.justice on account ol mistake ol either party in bringing the valuable evidence on record or leaving arlbiguity in the statements of the witnesses examined fiom either side. The determinative lactor is whether it is essential to the^just decision ol the case.^'Ihe section is not limited only lor the beneflt ol the accused^ and it will not be an improper exercise of the powers of the court to summon a witness under the section urerely because the evidence supports the case of the prosecution and not that of the accused. The section is a gcncral section which applies to all proceedings. enquiries and trials under the Code and cmpowers tl-re Magistrate to issue summons to any witness at any stage of such procecdings. trial or enquiry,. In Section 3lI the signilicant exprcssion that occurs is "at any stage ol any inquirl" or trial or other proceeding under this Code". lt is. horvcver. to be bornc in mind that rvhcreas the section conlers a very rvide porver on the court on summoning witnesses, the discrction conlerred is to be exercised^judiciously, as tlie wider the power the greater is the necessity for application of.iudicial mind.

¶134

As indicated above. the section is wholly discretionary. The second part of it imposes upon the Magistratc^an obligation: it is. that the court shall sut.ntnon and exatnirte all persons whose evidence appears to be csscntial to^the just decision olthe case. It is a cardinal rulc in the lau' of evidence that the best available evidence should be hrought before the court. Sections 60. 64 and 9l of the Evidence

¶135

KL.J Crl.l). Nos.828 & 9.15 o12020

¶136

Act, 1872 (in short 'the Evidence Act') are based on this rule.'l'he court is not empowered under the provisions ol' the Code to cornpel either the prosecution or thc defcnce to examinc any particular rvitness or witnesses on theif side. This rnust bc Ieft to the parties. But in rveighing the evidence. the court can take note ol the fact that the best available evidence has not been given. and can drarv an adverse iulerence.^-l'he court will often have to depend on intercepted allegations made by the parties. or on inconclusive inl'erence liom facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sorretimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.

¶137

The object ol Section 3l I is to bring on record evidence not only from the point of vierv of the accused and the prosecution but also lrom the point of vicw of the orderly society. Il a witness called by the court givcs evidencc against the complainant, he should be allor.ved an opportunity to cross-examine. The right to cross-examine a rvitness who is called by a court arises not under the provisions of Section 3ll, but under the Evidencc Act which gives a party the right to cross-examine a witness u,ho is not his ou,n witness. Since a witness sumrnoned by the court could not be terrned a witness ol atil particular party, the court should give the right of cross-examination to the complainant. These aspects . were highlighted in Jamatraj Kewalji Govani v. Stote of Maharashtra fi968CriLJ23tl.

¶138

Considering the ambit of Section 3 I I ol the Code. it does not appcar to be a case where anv interlerence is

¶139

KL.J Crl P. \os.3l3 & 9J5 ol l0li)

¶140

¶141

called lor. What is the eflect of evidence already recorded shall be considered by the trial coufl. Since Section 376 IPC is not cornpoundable in terms ol Section 320 of thc Code. thc trial court and the Hi,eh Court rightll' rejected the plal cr. We lind no scope tbr interlcrence in the trppcal. Our non- interlerence shall not be construed as we have expressed any opinion on the merits of the case.

¶142

In view of the above stated authoritative pronouncerrents

¶143

on legal principle, coming to the case on hand, adminedly, PW.3, u,ife of the accused, turned hostile. After the lapse of six months, she has addressed a letter to the Public Prosecutor informing that she inter.rds to give further evidence. Based on the said letter, the Public Prosecutor has filed an application under Section 31 1 of Cr.P.C. In the said petition. thc Public Prosecutor has stated that PW.3 has given her evidence not on her own free will and volition and she has given her er''idence undel the threat of accused. But. the Public PlosecLrtor has not filed any document. PW.3 did not lodge any complaint against her first htrsband i.e., petitioner - accused complaining about the alleged threat. There is no other evidence to show that the petllloner accused has thleatened PW.3. She neither loclsed complaint to the Court below, nor brought to the notice of the Court below about the alleged threat. PW.3 has addressed the letter dated 24.09.2019 merely stating that he has given her evidence earlier under threat, but not out of her own fiee wilt and volition. Except the said mere statement. there is no other evidence to show that she^ri,as threatened by the petitioner - accused.

¶144

KI-.J Crl.P. Nos.828 & 945 of2020

¶145

¶146

Section 311 of Cr.P.C. deals with power to sunlrnon rnaterial witness, or examine person present, and as per r,r,hich, any Court may, at any stage ofany inquiry, trial or other ploceeding under this Code, surrunon any person as a witness, or examine any person ir-r attendance, though not sumrnoned as a witness, or, recall and reexamine any person already exarnined; and the Court shall sulnmon and examine or recall and re- exalnine any such person il his evidence appears to it to be essential to the^just decision of the case.

¶147

The Apex Court in Mannan Shaikh v. State of West Bengale, held that the wide power to recall the witness is to be exercised with circumspection and only with the object of arriving at a just decision of the case and the same should not prejudice the accused and should not permit to fill up the lacuna by the prosecution. The said principle was also reiterated by the Apex Court in Vipin alias Nanhe v. State of Uttarakhand'0. The Apex Court in State of Hnryana v. Ram Meharll, held that merely because accused persons are ir-r prison and change ofcounsel by defence and their failure to put certain questions to witnesses is no ground to recall w itness.

¶148

_d 1'he Apex Courr in Rajaram Prasad Yadav2 held that in the absence ol any con.rplaint either to the trial Court or to the police with regard to alleged threat by the accused to a witness, application to recall a witness under section 31 1 of Cr.P.C. cannot be allowed.

¶149

o. lzor+; r: scc se

¶150

'u.^{2o l8 crt.L.J.t 5o (un)}

¶151

".^{etn20l6sc agez}

¶152

KL.J Crl.P. Nos.828 & 9,15 o12020

¶153

¶154

Ile-trial is not permissible under Section 3l 1 of Cr.P.C. The said principle was also held by the High Couft of Jammu and Kashrnir in Masoom Hussain Shah1.

¶155

In the present case also, except stating that PW.3 has given her evidence earlier under threat and coercion and not with her own free will and volition, there is no material to suppoft her contention. Even in Rama Paswan8, the Hon'ble Supreme Court examined the scope ol Section 311 of Cr.P.C. and held that the object ol Sectior.r 31 1 is to bring on lecord evidence not only from the point ol r,ierv ol the accused and the prosecution, but also from the point of view olthe orderly society. If a witness called by the Courl gives evidence against the complainant, he should be allowed an opportunity to crossexantine. The right to cross-exalrine a witness who is called by a Court arises not only under the provisions ol Section 311, but also under the Evidence Act which gives a pafty the right to cross-exarnine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross- examination to the cornplainanl. Discretion conferred is to be exercised^judiciously, as the wider the power the greater is the necessity for application ofjudicial rnind.

¶156

In the present case also, it is not a fit case to^perrrit P\V.3 fbr re-examination by the trial Court exercising its power under Section 31 I of Cr.P.C. The trial Courr simply reiterated ceftain paragraphs in Ra.iaram Prasad Yadav2 and other decisions and held

¶157

KI-.J Crl.P. Nos.828 & 945 of2020

¶158

2.1

¶159

that when a witness intends to examine herself to bring out true facts, rvitness should be given an opportunity to depose the said facts. However, it is observed that the accused even have an opportunity to cross-examine the witness and disprove her contention and it does not cause any prejudice to the accused. Hence, the petitioner is entitled to recall PW.3 for furlher examination. There is no reasoning at all. Thr,rs, acoording to this Court, the impugned order is contrary to the scope and anibit ol Section 3l I o1'Cr.P.C. and the principle held by the Apex Courl in Rajaram Prasad Yadav2, Masoom Hussain Shahr and Rama Pasrvans.^'f herefore, the impugned order dated 16.12.2019 passed by the trial Couft in Crl.M.P. No. 154 of 2019 is liable to be quashed.

¶160

Crl.P. No.945 of 2020

¶161

Now, coming to this petition, as already discussed above, the prosecution has filed another application under Section 311 of Cr.P.C. vide Crl.M.P. No.153 of 2019 to summon Ms. Y. Pavani, eldest daughter of PW.3, for examination for better adjudication of jLrstice in S.C. No. l2 of 2014. The said application was also filed on the strength of the letter addressed by PW.3 dated 24.09.2019 stating that her eldest daughter was in hostel at Vijayawada and studying 9'h Class and that she was threatened by the accused that if she gives evidence in Couft against hirn, he would kill her children. Now, her children are in her custody and out of threat. Therefore, she and her eldest daughter want to depose about the commission of of-fence

¶162

KL.J Crl.P. Nos.828 & 945 ol'2020

¶163

before the Courl as they are eye-witnesses. At the time of off'ence since daughter of PW.3 was nine years, she was not cited as a witness by the police and now she is 14 years and in a fit position to depose about the comrnission of of'fence and also the threat caused by the accused. In view ol the same, the prosecution has sought to sLrmmon the daughter of PW.3 as a witness to depose the cornr-r-rission o1' off'ence. It is apt to mention herein that no-where, the name of Ms. Y. Pavani, daughter of PW.3, is mentioned including the complaint, charge sheet and statements recorded by the police under Section l6l ol Cr.P"C. Even PW.3 did not speak about the presence ol- her daughter in her earlier statelnent. The petition was filed under Section 311 of Cr.P.C. only on the ground that daughter of PW.3 was under threat of accused and she is an eye witness. But,, the name of eldest daughter of PW.3 does not find place anywhere.

¶164

The learned counsel for the petitioner - accused has relied upon the principle held in Vani3, wherein the High Court of Andhra Pradesh at Hyderabad had an occasion to deal with summoning -fn.of witness who is not listed witness under Section 311 of C..f'.C. offence alleged against the accused was under Section 498-4 of IPC. The Pubtic Prosecutor filed an application under Section 31 1 of Cr.P.C. to examine three witnesses. None ol the witnesses were listed witnesses. The Court observed as under:

¶165

"3. Itight ol a party to invoke Section 3l I Cr.P.C at any stage of the proceeding has to be tested as against prejudice if any that is going to be caused to the accused.

¶166

KT,.J Crl.P. Nos.828 & 945 of 2020

¶167

¶168

Narnes of the above three rvitnesses are not found at any stage ol the investigation and they were also not disclosed by the petitioner in her evidence. It is contended by the petitioner's counsel that K.Saritha accompanied the petitioner to the police station at the tirne of giving report to the police and that the police recorded her statement under Section 16l Cr.P.C also and that in spite of it. she was not shown as witness for the prosecution and her statement under Section 161 Cr.P.C was removed by the police. This submission of the petitioner's counsel is nothing but a cock and bull story which has no basis in the record. Neither P.W- 1 stated so in her evidence nor the record has any' indication about the same. It is further contended by the petitioner's counsel lhat names ol' the above three r.vitnesses were kept as secret by the delhctocomplainant as there is every likelihood of the accused influencing those witnesses. This is u,hat is prohibited in a crirrinal trial. The accused cannot be put to surprise by bringirrg namcs ol i,vitnesses and witnesses as and when the prosecution or the defacto-cornplainant wants to introduce. In a fair criminal trial tlie defacto-comp lainant as u,ell as the prosecution has to disclose the entire prosecutioli evidence that is proposed to be let in during trial and lurnish copies of documents relating to the said u,itnesses to the accused before starting of trial. In the absence of the same, the prosecution cannot be perrnilted to examine surprisc r.vitnesses or secrel u'itnesses to the dctrir-nent or to the prejudice ol thc defence case. In the light of thc above discussion. the lorver Court rightly dismissed the petition liled by the Assistant Public Prosecutor under Section 3l I Cr.P.C. l-here is no inlirmity in the order passed by the lorver Courl muchless an1, rriscarriage of justice floiving lront it. ''

¶169

¶170

KL,J Crl.P. Nos.828 & 945 of 2020

¶171

¶172

.)J. ln Laveti Kamalaa, the High Courl of Andhra Pradesh at Hyderabad had an occasion to examine the scope and ambit of Section 31 1 of Cr.P.C. In the said case also, prosecution has filed an application under Section 31 I of Cr.P.C. requesting the Court to sumlnon two additional witnesses instead of listed witnesses. I'he l{igh CoLrm held as under:

¶173

"7. Apropos the othcr iu-rpugned order in crl. M. P. t929 ol 2000, the prosecution seeks to examinc lrlo persons as additional rvitnesses u'ho arc the Iegal hcirs of the 1wo clcceascd list u,itnesses of the case. Since both Ihc list * itnesses died during the pendency ol thc proceedings that cannot be a ground lbr requesting the Court to examine the witnesses who are now proposed to be examined. The previous statements olthese witnesses have not been recorded obviously for the reason that there was no opportunity to examine those witnesses by the investigating Agency during the course ol the investigation. Merely because two ol the list rvitnesses died their legal heirs cannot be the relevant rvitnesses in the case. In that view of the matter the request of the prosecution to examine those witnesses appears to be quite unreasonable. I therefore see no illegalitl' or material irregularity that has been committed by the Court belorv in having relused to consider the request of the prosecution to examine the additional witnesses under Section 3 I I ol Cr. P. C. For the foregoing reasons the irnpugned order in crl. M. P. 1929 of 2000 cannot be legitimately set aside."

¶174

In Sankarans, the Madras High Court had an occasion to examine the scope of Section 31 I of Cr.P.C. and held as under:

¶175

KL.J Crl.P. Nos.E28 & 945 of2020

¶176

¶177

"9. In consideration of the lhcrs plcaded. having rcgard to the materials placed on record and upon hearing the Iearned counsel lor both, what comes to be known is that in a case of rnisappropriation filed by the petitionerprosecution having exhausted the opportunity af'fbrded for it lor examination of its witnesses, at the fag end of the trial it has filed a petition under Section 3l I of Cr.P.C. for examination of four witnesses as additional evidence to prove the entrustment of the provisions rvith the respondents.

¶178

It rvould be argued on the part ol the petitionerprosecution that these lour lvitnesses sought to be exarrined as additional evidence are thc authors ol- the rccords which have to be proved before thc Court and it should be done only through them and thesc witnesses are rnaterial witnesses. The lurther argument of the petitionerprosecution is that since thc documcnts rvhich are sought to be r.narked through thcsc \'itnesses arc alread) firrming part ol the docur.nents llled in the court along rvith thc charge sheet and therefore, no pre.judice ivould be causecl to the accused in permitting the petitioner-prosecution to examine these rvitnesses as additional evidence.

¶179

ll. On the other hand on the part of the respondent it would be argued that after the lapse of ten years the petitioner-prosecution has come forward to examine these witnesses as additional evidence as though at the time rvhen they filed the charge sheet and the documenls they were not aware of the situation, which cannot be proper ground and therefore. the learned special Judge has disrnissed the said petition on ground that the prosccution lias comc lbrli'ard seeking to examine these r.vitnesses who have not been examined during investigation nor their statelnents recorded and the reasons lor not examining the rvitnesses during the tirne of investigation has not also bcen

¶180

KL.J Crl.P. Nos.828 & 945 of 2020

¶181

given by the Investigating Officer but only by the Public Proseoutor who has nothing to do regarding the exarnination ol rvitnesses and since the Investigating Otllcer has been satistled himself rvith the rvitnesses cited in the Iist of N'itnesses to provc the entrustment it is not up to the Public Prosecutor now to come firmard to say that r.lhat ovidence rvas earlier collected are inconsistent and the Court should perrnit them to examine these r.vitnesses as additional evidence."

¶182

On the other hand, the learned Public Prosecutor has relied upon a decision in Chemo Steels LimitedT, wherein the High Court of Andhra Pradesh at Hyderabad had an occasion to deal with the scope of Section 311 of Cr.P.C. and held that a person rvhose statement under Section 161 Cr.P.C was not recorded cannot be permitted to be examined as witness under Section 31 I Cr.P.C is not the ratio in that decision. Even assuming that it is held so in that decision in view of the ratio in lv'[ohanlal Shamli Soni v. Union o/' lndia il99 I Cri.L.J. 15211 that fact per se cannot be a ground tbr dismissing a petition under Section 31 I Cr.P.C. In lact, in Bhilo,u Bctltr v. Stare of Andhrct Pradesh [1997 (2) ALD 819] it was held that if the evidence proposed to be adduced appears to be essential to render a^just decision in the case, additional witness can be examined, especially when his name was spoken to by the other prosecutiort witnesses already examined, and if tl-rere is nothing to show that the he is planted in the garb of additional rvitness to support the prosecution case. With the said findings, the High Court has allorved the

¶183

KI,.I Crl.P. Nos.828 & 945 ol20l0

¶184

¶185

application filed urrder Section 311 of Cr.P.C. pernritting the lvitncss, rvho was not listed by the prosecution, to give evidence

¶186

ln vier.r, ol the above stated autholitative pronouncentents on legal principle, coming to the case on hand, adrnittedly, the narle of Ms. Y. Pavani, daughter of PW.3 and accused, was not referred to anywhere or at any stage including in the complaint, charge sheet and also statements recorded by the police ur.rder Section l6l Cr.P.C. At the cost of repetition, it is trite to note that even PW.3, mother of Ms. Y. Pavani and wife of petitioner - accused, did not speak about the presence of her daughter in her earlier statement.

¶187

The only ground rnentioned in the petition filed under Section 3l I of Cr.P.C. by the prosecution is that, Ms. Y. Pavani, rvas an eye-witness and she was unable to depose earlier and police unable to record her statement since she was staying in the Hostel and she was under the threat of accused. But, PW.3, mother of Ms. Y. Pavani, did not lodge any cornplaint with the police with regard to the alleged threat. She did not even bring the said fact to the notice of trial Cor-rrt. The said applicatior.r was filed after the lapse of six months. There is no supporting evidence to show that Ms. Y. Pavani was an eyewitness. Even, there is no explanation by the prosecution about the police in not recording statement of daughter ol PW.3. Thus, there is I1C) explanation. much less plausible explanation offered bl the prosecution lbr non-examination of Ms. Y. Pavani. In vierv of the sarle and also the principle iaid down in the aloresaid decisions. the

¶188

KL.J

¶189

Crl.P. Nos.828 &^9-15 ol:020 3l

¶190

impugned order in Crl.M.P. No.l53^{ol 2019 is also liable to be} quaslled

¶191

Accordingly, the Criminal^{Petition Nos.828and 945 ol} 2020 are allorved, and the in.rpugned^{orders,both dated16.12.2019} passed by the trial Court in Crl.M.P. Nos.154^{and153 o12019 in S.C.} No.l 2 of 2014 respectively, are^{hereby quashed.}

¶192

r\s a sequcl. rniscelianeous^{petitions,i1- any. pendirrg in thc}

¶193

Criminal Petitions shall stand^closed.

¶194

Sd/-I.NAGA LAKS MI ASSISTANT REG

¶195

//TRUE COPY//

¶196

SECTION OFFICER

¶197

To,