Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2013

(@ SLP (CRL.) No.2400 of 2011)

Rajaram Prasad Yadav ….Appellant

VERSUS

State of Bihar & Anr. ….Respondent

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1.Leave granted.

2.This appeal is directed against the order of the High Court

of Judicature at Patna, in Criminal Miscellaneous Petition No.

12454 of 2010, dated 9.12.2010.

3.By a short order dated 18.11.09, passed in Sessions Trial

No. 425 of 2009, the trial Court disallowed the applications of the

Respondents filed under Section 311 of the Code of Criminal

Procedure (Cr.P.C.), to re-examine PW-9, the informant. The High

Court directed the trial Court to allow the 2

nd

Respondent to

examine himself as a witness on a specified date by its order

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Page 2 dated 9.12.2010.

4.To narrate the brief facts, the 2

nd

Respondent (PW-9), herein

filed a written complaint, alleging that on 07.07.1999, at about 5

p.m. in the evening, as regards the construction of a latrine in his

land in front of his house, a dispute arose as between him and his

brother Bindeshwar Yadav and that at the instance of his brother

Bindeshwar Yadav, his son Rajaram Yadav, brought a country

made pistol and fired at the 2

nd

respondent (PW-9) on the left side

of the back, whereafter he was taken to the hospital for

treatment.

5.At the instance of the second respondent, based on a

complaint dated 8.7.1999, a case in Crime No. 71 of 1999 was

registered in Khizersarai Police Station for the offences

punishable under Sections 324, 307 read with Section 34 Indian

Penal Code, 1860 and also under Section 27 of the Arms Act,

1959. Investigation was held and an injury report was brought on

record, in which the doctor opined that the injury was caused by

a hard blunt substance and was single in nature. It was stated

that the second Respondent (PW-9) was able to secure another

report later on.

6.The appellant was enlarged on bail on 13.10.1999. A charge

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Page 3 sheet bearing No. 127 of 1999, dated 31.10.1999 was filed

against the appellant and the other accused for the offences

under Sections 324, 307 read with 34 of IPC. Significantly, there

was no charge framed under Section 27 of the Arms Act.

Cognizance was taken and the case was committed and after

framing of the charges, the trial commenced. After the

examination of the other witnesses, the 2

nd

Respondent was

examined as PW-9 on 16.3.2007.

7.In his evidence, the 2

nd

Respondent (PW9), categorically

stated that he never gave any statement to the police; that

nobody beat him on the date of occurrence and that he was not

hit by any bullet. He further stated in his evidence that he

accidently fell into the hole of the latrine, while looking into it and

that some instrument, which was lying inside the hole, caused

the injury on his body. As far as the evidence of PW-4 and PW-5,

namely, his sons, Babloo and Munna Kumar was concerned, the

2

nd

Respondent (PW9) stated that they were not present at the

place of occurrence, since Babloo was staying in a hospital at

Hulasganj and Munna Kumar was at Ranchi. The evidence of the

prosecution was closed on 4.4.2007 and thereafter, the evidence

of the defense side stated to have commenced.

8.In the meantime, it is stated that yet another altercation

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Page 4 took place as between, the 2

nd

Respondent (PW9), his son Babloo

on the one side and the appellant and his father on the other

side, regarding the flowing of water from the latrine, constructed

by the 2

nd

Respondent into the field of the father of the appellant.

9.Pursuant to the said issue, it is stated that the father of the

appellant was beaten with bamboo sticks, injuring him seriously.

In connection with the said incident, Bindeshwar Yadav filed a

complaint before the police on 7.6.2007, leading to the

registration of the FIR on the same date in Khizersarai Police

Station in case No.78 of 2007. Subsequently, the second

respondent came forward with a petition dated 24.8.2007, under

Section 311 Cr.P.C. and sought for permission for his re-

examination. For the same purpose, the Additional Public

Prosecutor also filed a petition on 5.12.2007, in the above

applications. The trial Court passed a common order on

18.11.2009, dismissing both the applications and posted the case

for evidence of investigation officers and the doctors on

18.12.2009. The second respondent approached the High Court

by filing the present Criminal Misc. Case No.12454/2010, in which

the impugned order was passed by the High Court on 9.12.2010.

10.We heard Mr. Mohit Kumar Shah, learned counsel for the

appellant and Mr. Gopal Singh, learned counsel for the first

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Page 5 respondent and Mr. Amlan Kumar Ghosh, learned counsel for the

second respondent. We also perused the order impugned, as

well as the order of the trial Court and other material papers

placed on record.

11.Mr. Mohit Kumar Shah, learned counsel for the appellant in

his submission contended that while the trial Court passed a

reasoned order after hearing both parties extensively, the

Hon’ble High Court passed the impugned order in the absence of

the appellant. According to the learned counsel, the second

respondent even without impleading the appellant, persuaded

the High Court to pass the impugned order, which according to

the learned counsel is on the face of it, not sustainable under

Section 311 Cr.P.C. Learned counsel further contended that by

permitting the second respondent to get himself re-examined,

every attempt has been made to fill up the lacunae in the case of

the prosecution, which the High Court ought not to have

permitted. According to the learned counsel, when the trial Court

had examined the pros and cons, while dealing with the prayer of

the second respondent, as well as the first respondent for re-

examination of the second respondent and gave well-founded

reasons for rejecting the applications, the High Court ought not to

have interfered with the same by passing a cryptic order.

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Page 6 Learned counsel further contended that the application, which

came to be allowed by the High Court was vexatious and would

only encourage the malicious designs of the second respondent

to get over his own earlier version deposed before the Court,

which fully supported the case of the appellant.

12.As against the above submissions, learned counsel for the

respondents contended that as enormous powers are vested in

the Court under Section 311 Cr.P.C., in the matter of examination

or re-examination of a witness in order to arrive at a just

conclusion and the High Court having exercised its powers in

pursuance of the said power, the order of the High Court does not

call for interference.

13.Having heard the learned counsel for the respective parties

and having bestowed our serious consideration to the issue

involved, we find force in the submission of the counsel for the

appellant, as the same merits acceptance. In order to appreciate

the stand of the appellant it will be worthwhile to refer to Section

311 Cr.P.C., as well as Section 138 of the Evidence Act. The

same are extracted hereunder:

Section 311, Code of Criminal Procedure

311.Power to summon material witness, or

examine person present : Any Court may, at any

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Page 7 stage of any inquiry, trial or other proceeding under

this Code, summon any person as a witness, or

examine any person in attendance, though not

summoned as a witness, or recall and re-examine any

person already examined; 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.

Section 138, Evidence Act

138.Order of examinations - witnesses shall be first

examined-in-chief, then (if the adverse party so

desires) cross-examined, then (if the party calling him

so desires) re-examined.

The examination and cross-examination must

relate to relevant facts, but the cross-examination

need not be confined to the facts to which the witness

testified on his examination-in-chief.

Direction of re-examination - The re-examination

shall be directed to the explanation of matters

referred to in cross-examination; and, if new matter is,

by permission of the Court, introduced in re-

examination, the adverse party may further cross-

examine upon that matter.”

14.A conspicuous reading of Section 311 Cr.P.C. would show

that widest of the powers have been invested with the Courts

when it comes to the question of summoning a witness or to

recall or re-examine any witness already examined. A reading of

the provision shows that the expression “any” has been used as a

pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person

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Page 8 as a witness”, “person in attendance though not summoned as a

witness”, and “person already examined” . By using the said

expression “any” as a pre-fix to the various expressions

mentioned above, it is ultimately stated that all that was required

to be satisfied by the Court was only in relation to such evidence

that appears to the Court to be essential for the just decision of

the case. Section 138 of the Evidence Act, prescribed the order

of examination of a witness in the Court. Order of re-examination

is also prescribed calling for such a witness so desired for such

re-examination. Therefore, a reading of Section 311 Cr.P.C. and

Section 138 Evidence Act, insofar as it comes to the question of a

criminal trial, the order of re-examination at the desire of any

person under Section 138, will have to necessarily be in

consonance with the prescription contained in Section 311 Cr.P.C.

It is, therefore, imperative that the invocation of Section 311

Cr.P.C. and its application in a particular case can be ordered by

the Court, only by bearing in mind the object and purport of the

said provision, namely, for achieving a just decision of the case

as noted by us earlier. The power vested under the said

provision is made available to any Court at any stage in any

inquiry or trial or other proceeding initiated under the Code for

the purpose of summoning any person as a witness or for

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Page 9 examining any person in attendance, even though not summoned

as witness or to recall or re-examine any person already

examined. Insofar as recalling and re-examination of any person

already examined, the Court must necessarily consider and

ensure that such recall and re-examination of any person,

appears in the view of the Court to be essential for the just

decision of the case. Therefore, the paramount requirement is

just decision and for that purpose the essentiality of a person to

be recalled and re-examined has to be ascertained. To put it

differently, while such a widest power is invested with the Court,

it is needless to state that exercise of such power should be

made judicially and also with extreme care and caution.

15.In this context, we also wish to make a reference to certain

decisions rendered by this Court on the interpretation of Section

311 Cr.P.C. where, this Court highlighted as to the basic

principles which are to be borne in mind, while dealing with an

application under Section 311 Cr.P.C. In the decision reported in

Jamatraj Kewalji Govani vs. State of Maharashtra - AIR 1968

SC 178, this Court held as under in paragraph 14:-

“14. It would appear that in our criminal jurisdiction,

statutory law confers a power in absolute terms to be

exercised at any stage of the trial to summon a

witness or examine one present in court or to recall a

witness already examined, and makes this the duty

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Page 10 and obligation of the Court provided the just

decision of the case demands it. In other words,

where the court exercises the power under the second

part, the inquiry cannot be whether the accused has

brought anything suddenly or unexpectedly but

whether the court is right in thinking that the new

evidence is needed by it for a just decision of the

case. If the court has acted without the

requirements of a just decision, the action is

open to criticism but if the court's action is

supportable as being in aid of a just decision

the action cannot be regarded as exceeding the

jurisdiction.”

(Emphasis added)

16.In the decision reported in Mohanlal Shamji Soni vs.

Union of India and another - 1991 Suppl.(1) SCC 271, this

Court again highlighted the importance of the power to be

exercised under Section 311 Cr.P.C. as under in paragraph 10:-

“10….In order to enable the court to find out the truth

and render a just decision, the salutary provisions of

Section 540 of the Code (Section 311 of the new

Code) are enacted whereunder any court by

exercising its discretionary authority at any stage of

enquiry, trial or other proceeding can summon any

person as a witness or examine any person in

attendance though not summoned as a witness or

recall or re-examine any person in attendance though

not summoned as a witness or recall and re-examine

any person already examined who are expected to be

able to throw light upon the matter in dispute;

because if judgments happen to be rendered on

inchoate, inconclusive and speculative presentation of

facts, the ends of justice would be defeated.”

17.In the decision in Raj Deo Sharma (II) vs. State of Bihar

- 1999 (7) SCC 604, the proposition has been reiterated as under

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Page 11 in paragraph 9:-

“9. We may observe that the power of the court as

envisaged in Section 311 of the Code of Criminal

Procedure has not been curtailed by this Court.

Neither in the decision of the five-Judge Bench in A.R.

Antulay case nor in Kartar Singh case such power has

been restricted for achieving speedy trial. In other

words, even if the prosecution evidence is closed in

compliance with the directions contained in the main

judgment it is still open to the prosecution to invoke

the powers of the court under Section 311 of the

Code. We make it clear that if evidence of any

witness appears to the court to be essential to

the just decision of the case it is the duty of the

court to summon and examine or recall and re-

examine any such person.”

(Emphasis added)

18.In U.T. of Dadra and Nagar Haveli and Anr. vs.

Fatehsinh Mohansinh Chauhan - 2006 (7) SCC 529, the

decision has been further elucidated as under in paragraph 15:-

“15. A conspectus of authorities referred to above

would show that the principle is well settled that

the exercise of power under Section 311 CrPC

should be resorted to only with the object of

finding out the truth or obtaining proper proof

of such facts which lead to a just and correct

decision of the case, this being the primary duty of

a criminal court. Calling a witness or re-examining a

witness already examined for the purpose of finding

out the truth in order to enable the court to

arrive at a just decision of the case cannot be

dubbed as “filling in a lacuna in the prosecution

case” unless the facts and circumstances of the case

make it apparent that the exercise of power by the

court would result in causing serious prejudice to the

accused resulting in miscarriage of justice.”

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Page 12 (Emphasis added)

19.In Iddar & Ors. vs. Aabida & Anr. - AIR 2007 SC 3029, the

object underlying under Section 311 Cr.P.C., has been stated as

under in paragraph 11:-

“11. The object underlying Section 311 of the Code is

that there may not be failure of justice on account of

mistake of either party in bringing the valuable

evidence on record or leaving ambiguity in the

statements of the witnesses examined from either

side. The determinative factor is whether it is

essential to the just decision of the case. The

section is not limited only for the benefit of the

accused, and it will not be an improper exercise of the

powers of the court to summon a witness under the

section merely because the evidence supports the

case for the prosecution and not that of the accused.

The section is a general section which applies to all

proceedings, enquiries and trials under the Code and

empowers Magistrate to issue summons to any

witness at any stage of such proceedings, trial or

enquiry. In Section 311 the significant expression that

occurs is ‘at any stage of inquiry or trial or other

proceeding under this Code’. It is, however, to be

borne in mind that whereas the section confers

a very wide power on the court on summoning

witnesses, the discretion conferred is to be

exercised judiciously, as the wider the power

the greater is the necessity for application of

judicial mind.”

(Emphasis added)

20.In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242,

the scope of Section 311 Cr.P.C. has been highlighted by making

reference to an earlier decision of this Court and also with

particular reference to the case, which was dealt with in that

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Page 13 decision in paragraphs 13 and 16, which are as under:-

“13. Grant of fairest opportunity to the accused to

prove his innocence was the object of every fair trial,

observed this Court in Hoffman Andreas v. Inspector

of Customs, Amritsar (2000) 10 SCC 430 . The

following passage is in this regard apposite:

“In such circumstances, if the new counsel thought to

have the material witnesses further examined, the

Court could adopt latitude and a liberal view in

the interest of justice, particularly when the

court has unbridled powers in the matter as

enshrined in Section 311 of the Code. After all

the trial is basically for the prisoners and courts

should afford the opportunity to them in the

fairest manner possible.”

16. We are conscious of the fact that recall of the

witnesses is being directed nearly four years after

they were examined-in-chief about an incident that is

nearly seven years old. Delay takes a heavy toll on the

human memory apart from breeding cynicism about

the efficacy of the judicial system to decide cases

within a reasonably foreseeable time period. To that

extent the apprehension expressed by Mr. Rawal, that

the prosecution may suffer prejudice on account of a

belated recall, may not be wholly without any basis.

Having said that, we are of the opinion that on a parity

of reasoning and looking to the consequences of

denial of opportunity to cross-examine the witnesses,

we would prefer to err in favour of the appellant

getting an opportunity rather than protecting the

prosecution against a possible prejudice at his cost.

Fairness of the trial is a virtue that is sacrosanct

in our judicial system and no price is too heavy

to protect that virtue. A possible prejudice to

prosecution is not even a price, leave alone one

that would justify denial of a fair opportunity to

the accused to defend himself .”

(Emphasis added)

21.In a recent decision of this Court in Sheikh Jumman vs.

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Page 14 State of Maharashtra - (2012) 9 SCALE 80, the above referred

to decisions were followed.

22.Again in an unreported decision rendered by this Court

dated 08.05.2013 in Natasha Singh vs. CBI (State) – Criminal

Appeal No.709 of 2013, where one of us was a party, various

other decisions of this Court were referred to and the position has

been stated as under in paragraphs 14 and 15:

“14. The scope and object of the provision is to

enable the Court to determine the truth and to render

a just decision after discovering all relevant facts and

obtaining proper proof of such facts, to arrive at a just

decision of the case. Power must be exercised

judiciously and not capriciously or arbitrarily, as any

improper or capricious exercise of such power may

lead to undesirable results. An application under

Section 311 Cr.P.C. must not be allowed only to fill up

a lacuna in the case of the prosecution, or of the

defence, or to the disadvantage of the accused, or to

cause serious prejudice to the defence of the accused,

or to give an unfair advantage to the opposite party.

Further the additional evidence must not be received

as a disguise for retrial, or to change the nature of the

case against either of the parties. Such a power must

be exercised, provided that the evidence that is likely

to be tendered by a witness, is germane to the issue

involved. An opportunity of rebuttal, however, must

be given to the other party.

The power conferred under Section 311 Cr.P.C.

must, therefore, be invoked by the Court only in order

to meet the ends of justice, for strong and valid

reasons, and the same must be exercised with great

caution and circumspection.

The very use of words such as ‘any Court’, ‘at

any stage’, or ‘or any enquiry’, trial or other

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Page 15 proceedings’, ‘any person’ and ‘any such person’

clearly spells out that the provisions of this section

have been expressed in the widest possible terms,

and do not limit the discretion of the Court in any way.

There is thus no escape if the fresh evidence to be

obtained is essential to the just decision of the case.

The determinative factor should, therefore, be

whether the summoning/recalling of the said witness

is in fact, essential to the just decision of the case.

15.Fair trial is the main object of criminal procedure,

and it is the duty of the court 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 of fair and proper opportunities to

the person concerned, and the same must be ensured

as this is a constitutional, as well as a human right.

Thus, under no circumstances can a person’s right to

fair trial be jeopardized. Adducing evidence in support

of the defence is a valuable right. Denial of such right

would amount to the denial of a fair trial. Thus, it is

essential that the rules of procedure that have been

designed to ensure justice are scrupulously followed,

and the court must be zealous in ensuring that there

is no breach of the same. (Vide Talab Haji Hussain v.

Madhukar Purshottam Mondkar & Anr., AIR 1958 SC

376; Zahira Habibulla H. Sheikh & Anr. v. State of

Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah

Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC

1367; Kalyani Baskar (Mrs.) v. M.S. Sampoornam

(Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P.

& Anr., (2011) 8 SCC 136; and Sudevanand v. State

through C.B.I. (2012) 3 SCC 387.)”

23.From a conspectus consideration of the above decisions,

while dealing with an application under Section 311 Cr.P.C. read

along with Section 138 of the Evidence Act, we feel the following

principles will have to be borne in mind by the Courts:

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Page 16 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 Section 311 is

noted by the Court for a just decision of a case?

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

thereby the ends of justice would be defeated.

c) If evidence of any witness appears to the Court

to be essential to the just decision of the case, it

is the power of the Court to summon and

examine or recall and re-examine any such

person.

d) The exercise of power under Section 311 Cr.P.C.

should be resorted to only with the object of

finding out the truth or obtaining proper proof for

such facts, which will lead to a just and correct

decision of the case.

e) The exercise of the said power cannot be dubbed

as filling in a lacuna in a prosecution case, unless

the facts and circumstances of the case make it

apparent that the exercise of power by the Court

would result in causing serious prejudice to the

accused, resulting in miscarriage of justice.

f) The wide discretionary power should be

exercised judiciously and not arbitrarily.

g) The Court must satisfy itself that it was in every

respect essential to examine such a witness or to

recall him for further examination in order to

arrive at a just decision of the case.

h) The object of Section 311 Cr.P.C. simultaneously

imposes a duty on the Court to determine the

truth and to render a just decision.

i) The Court arrives at the conclusion that

additional evidence is necessary, not because it

would be impossible to pronounce the judgment

without it, but because there would be a failure

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Page 17 of justice without such evidence being

considered.

j) Exigency of the situation, fair play and good

sense should be the safe guard, while exercising

the discretion. The Court should bear in mind

that no party in a trial can be foreclosed 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 magnanimous in permitting such

mistakes to be rectified.

k) The Court should be conscious of the position

that after all the trial is basically for the prisoners

and the Court 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.

l) The additional evidence must not be received as

a disguise or to change the nature of the case

against any of the party.

m) The power must be exercised keeping in mind

that the evidence that is likely to be tendered,

would be germane to the issue involved and also

ensure that an opportunity of rebuttal is given to

the other party.

n) The power under Section 311 Cr.P.C. must

therefore, be invoked by the Court only in order

to meet the ends of justice for strong and valid

reasons and the same 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

society and, therefore, the grant of fair and

proper opportunities to the persons concerned,

must be ensured being a constitutional goal, as

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Page 18 well as a human right.

24.Keeping the above principles in mind, when we examine the

case on hand, at the very outset, it will have to be stated that the

High Court, while passing the impugned order has completely

ignored the principal objectives with which the provision under

Section 311 Cr.P.C. has been brought into the statute book. As

rightly argued by the learned counsel for the appellant, at the

foremost when the trial was very much in the grip of the trial

Court, which had every opportunity to hear the appellant, the

State, as well as the second respondent, had not even bothered

to verify whether the appellant, who was facing criminal trial was

impleaded as a party to the proceedings in the High Court. A

perusal of the order discloses that the High Court appears to

have passed orders on the very first hearing date, unmindful of

the consequences involved. The order does not reflect any of the

issues dealt with by the Learned Sessions Judge, while rejecting

the application of the respondents in seeking to re-examine PW-

9, the second respondent herein. Though orders could have been

passed in this appeal by remitting the matter back to the High

Court, having regard to the time factor and since the entire

material for passing final orders, are available on record and

since all parties were before us, the correctness of the order of

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Page 19 the Sessions Judge dated 18.11.2009, can be examined and final

orders can be passed one way or the other in the present criminal

appeal itself.

25.With that view, when we examine the basic facts, we find

them as noted by the learned trial Judge being indisputably

contrary to the complaint preferred by the second respondent on

8.7.1999, in the police station in case No. 71/1999, wherein

offences under Section 324/307/34 IPC were reported alongwith

Section 27 of the Arms Act. Based on the report of the doctor, the

chargesheet came to be filed bearing No.127/99, dated

31.10.1999, under Sections 324/307/34 IPC and no charge under

Section 27 of the Arms Ac was laid. The said case was put to trial

and parties were participating. In the course of the trial, the turn

of examination of PW-9, the second respondent came on

16.3.2007, nearly after eight years from the date of occurrence.

Second respondent made a categorical statement in his evidence

that he never made any statement to the police nor was he

beaten on the date of occurrence, nor was he hit by any bullet

shot. Further he made a clear statement that the injury

sustained by him was due to the fall into the hole dug for

constructing a latrine, where some instruments caused the injury

sustained by him. He also made a categorical statement that his

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Page 20 sons PWs-4 and 5, Babloo and Munna Kumar, were not present at

the place of occurrence since one was staying in a hostel in

Hulasganj and the other was at Ranchi on the date and time of

occurrence, namely, on 07.07.1999, at about 5 p.m. While the

said version of the second respondent was stated to have been

recorded by the Court below on 16.3.2007, and the evidence of

the prosecution was stated to have been closed on 4.4.2007, the

defence evidence seem to have also commenced.

26. In that scenario, the second respondent filed the present

application under Section 311 Cr.P.C. on 24.8.2007, i.e., nearly

after five months after his examination by the trial Court. While

filing the said application, the second respondent claimed that his

evidence tendered on 16.3.2007, was not out of his own free will

and volition, but due to threat and coercion at the instance of the

accused persons, including the appellant. It was contended on

behalf of the second respondent that the accused persons posed

a threat by going to the extent of eliminating him and that such

threat was meted out to him on 15.3.2007, when he was

kidnapped from his wheat field by the accused, along with two

unknown persons.

27. The trial Court having examined all the above factors in its

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Page 21 order dated 18.11.2009, has held as under:

“….Either at the time of his evidence in Court or

subsequent to his evidence he never made any

complaint to the court or any other officer viz. the

C.J.M. or any police officer that accused persons had

yielded any pressure upon him to turn hostile to the

prosecution and to give a go by to the prosecution

case. He has also argued that he did not also file any

affidavit or case in this regard. Rather when on the

basis of the information dated 30.5.2007 given by the

accused Bindeshwar Yadav Khizersarai Police Station

case No.78/2007 dated 7.6.2008 was registered by

the police the informant Suresh Prasad has filed this

petition and has also got the similar petition filed

through the Additional Public Prosecutor which has got

no legs to stand and the same is fit to be rejected. He

also filed a photocopy of the FIR to Khizersarai Police

Station case No.78/2007 in support of his argument.”

28. After noting the above submissions made on behalf of the

accused, the trial Court held as under:

“….After the evidence of the informant, Suresh Prasad

(PW-9) on 16.03.2007 the Court of Addl. Sessions

Judge, F.T.C.-5 closed the evidence of prosecution on

04.04.2007 after giving opportunity to the learned

Addl. P.P. to produce the remaining witness on

26.03.2007 and 04.04.2007 which he could not do on

the ground that the time limited by the Hon’ble Court

has expired. The Lordships of Supreme Court have

held in Dohiyabhai Vs. State, AIR 1964 SC 1563 that

“Right to re-examine a witness arises only after the

conclusion of cross examination and S.C. 138 says it

shall be directed to the explanation of any part of his

evidence given during cross examination which is

capable of being construed unfavourably too his own

side. The object is to give an opportunity to reconcile

the discrepancies if any between the statements in

examination in chief and cross examination or to

explain any statement inadvertently made in cross

examination or to remove any ambiguity in the

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Page 22 deposition or suspicion cast on the evidence by cross

examination. Where there is no ambiguity or where

there is nothing to explain, question put in re-

examination with the sole object of giving a change to

the witness to unto the effect of the previous

statement should not be asked during re-examination

(S.142). Section 154 is wide in its scope and court can

permit a person calling a witness to but question in

the nature of cross examination at the stage of re-

examination provided it take care to give opportunity

to the adverse party to cross examine the witness in

the such case”. It is clear from the afore quoted

principles decided by the Hon’ble Apex Court and from

the evidence of PW-9 as well as from the instant two

aforesaid petitions filed on behalf of the PW-9 and the

Additional P.P. that the cross examination of PW-9

does not contain any evidence against his evidence in

chief which could be explained or made clear by re-

examination of PW-9 through his re-examination vide

Section 138 Evidence Act or Section 311 of the

Criminal Procedure Code. It is also clear that PW-9 had

filed petition after filing of the case against him by the

accused. As such the two instant petitions are not

maintainable. However, whether the hostility of PW-9

would have been tested on the touch stone of Section

145 Evidence Act by examining the I.O. as some other

prosecution witness have supported the prosecution

case. The evidence of the I.O. of the case is taken

would have sufficed the end of justice.”

29.We find that the factors noted by the trial Court and the

conclusion arrived at by it were all appropriate and just, while

deciding the application filed under Section 311 Cr.P.C. We do

not find any bonafides in the application of the second

respondent, while seeking the permission of the Court under

Section 311 Cr.P.C. for his re-examination by merely alleging that

on the earlier occasion he turned hostile under coercion and

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Page 23 threat meted out to him at the instance of the appellant and

other accused. It was quite apparent that the complaint, which

emanated at the instance of the appellant based on the

subsequent incident, which took place on 30.5.2007, which

resulted in the registration of the FIR in Khizersarai Police Station

in case No.78/2007, seem to have weighed with the second

respondent to come forward with the present application under

Section 311 Cr.P.C., by way of an afterthought. If really there

was a threat to his life at the instance of the appellant and the

other accused, as rightly noted by the Court below, it was not

known as to why there was no immediate reference to such

coercion and undue influence meted out against him at the

instance of the appellant, when he had every opportunity to

mention the same to the learned trial Judge or to the police

officers or to any prosecution agency. Such an indifferent stance

and silence maintained by the second respondent herein and the

categorical statement made before the Court below in his

evidence as appreciated by the Court below was in the proper

perspective, while rejecting the application of the respondents

filed under Section 311 Cr.P.C. In our considered opinion, the

trial Court, had the opportunity to observe the demeanour of the

second respondent, while tendering evidence which persuaded

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Page 24 the trial Court to reach the said conclusion and that deserves

more credence while examining the correctness of the said order

passed by the trial Court.

30.In the light of the above conclusion, applying the various

principles set out above, we are convinced that the order of the

trial Court impugned before the High Court did not call for any

interference in any event behind the back of the appellant herein.

The appeal, therefore, succeeds. The order impugned dated

9.12.2010, passed in Crl. M.P. 12454/2010 of the High Court is set

aside. The order of the trial Court stands restored. The trial

Court shall proceed with the trial. The stay granted by this Court

in the order dated 7.3.2011, stands vacated. The trial Court shall

proceed with the trial from the stage it was left and conclude the

same expeditiously, preferably within three months from the date

of receipt of the copy of this order.

……...............................................J.

[T.S. Thakur]

…………… .………………………………J.

[Fakkir Mohamed Ibrahim Kalifulla]

New Delhi;

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