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Dharmendra Jadon vs The State Of Madhya Pradesh Thr on 17 January, 2018

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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C.No.367/2018
Dharmendra Jadon vs. State of M.P.
Gwalior, Dated : 17.01.2018
Shri Amit Lahoti and Shri Brijesh Tyagi, learned
counsel, for the petitioner.
Shri S.S. Dhakad, learned Public Prosecutor, for
the respondent/State.
With the consent of learned counsel for the
parties, the matter is heard finally at the motion
stage of hearing of the case and the following order is
passed:-

ORDER

1. The petitioner has filed this petition under
Section 482 of the Cr.P.C. against the impugned order
dated 22.12.2017 passed by the court of Special
Judge (Atrocities) Vidisha in Special Sessions Case
No.131/2015, whereby his application under Section
311 Cr.P.C. (for short ‘the application’) has been
disallowed.

2. Short facts of the case for just and proper
adjudication of this petition are that the petitioner
has been facing trial in the said case under Sections
354, 376 and 506 of the IPC, 3 r.w. 4 of the POCSO
Act and 3 (1)(xii) of the S.C. and S.T. Act before the
said Court. The learned Special Judge has recorded
the evidence of the prosecutrix, her mother and
brother as witnesses No.PW/1 to PW/3 respectively.
On 12.09.2017, the application was filed on behalf of
the petitioner stating that his previous counsel had
not cross-examined properly all the three witnesses
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in respect of the discrepancies, inconsistencies and
the contradictions appearing in their evidence.
Therefore, their further re-cross examinations are
necessary to secure justice from the court for him in
the case. Consequently, they be recalled for further
cross-examinations. The petitioner is ready to bear
their expenses.

3. Having heard the arguments on the application
raised by the learned counsel for the parties, the
learned Special Judge dismissed the application vide
the impugned order holding that a senior counsel had
cross-examined all the three witnesses in detail,
therefore, there is no cogent and reasonable ground
exist to recall all the three witnesses for further
cross-examinations.

4. Hence, this petition.

5. Learned counsel for the petitioner submits that
the cross-examinations of all the three witnesses are
necessary on the points of contradictions, omissions,
inconsistencies and discrepancies appearing in their
evidence to get justice for the petitioner otherwise he
would be a victim of miscarriage of justice. He
submits that the learned Special Judge dismissed the
application superficially. He, therefore, prays to allow
the application, setting aside the impugned order.

6. Learned Public Prosecutor submits that the trial
Court had recorded the evidence of all the three
witnesses in the year 2015. But, the petitioner
submitted the application after the lapse of about two
years without giving any convincing reason for delay
of two years in filing it. In fact, during the said period
the petitioner has been succeeded in winning over all
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the three witnesses by the power of money or
muscles or otherwise. Thereupon, the application was
filed to get their versions appearing in their
examination-in-chief changed. Thus, the application
was filed with mala fide intention. The learned Special
Judge rightly dismissed the application having found
no reasonable and convincing reasons to recall all the
three witnesses. Thus, no interference by this Court
in exercise of power under Section 482 of the Cr.P.C.
with the impugned order is warranted.

7. I have considered the rival submissions made at
the bar and perused the impugned order and the
material on record.

8. Hon’ble the Supreme Court in the case of State
(NCT of Delhi) Vs. Shiv Kumar Yadav and Anr.
[(2016) (2) SCC 402] has laid down certain
parameters for recall/re-examination of a witness
under the provisions of Section 311 Cr.P.C. The
Supreme Court has emphasized that the recall cannot
be allowed on the pleas that defence counsel
(previous) was not competent and that he had not
effectively cross-examined witnesses. It is also held
that recall should not be a matter of course. A plea
for recall for advancing justice has to be bona fide
and has to be balanced carefully with other relevant
consideration including uncalled for hardships to
witnesses and uncalled for delay in the trial. In the
case of State of Haryana Vs. Ram Mehar and others
(2016 Cr.L.J.4666 SC), the Supreme Court has
reiterated the same parameters and rejected the
application made by the accused persons under
Section 311 Cr.P.C. In a recent decision reported in
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Ratanlal vs. Prahlad Jat and others, (2017) 9 SCC
340, the High Court of Rajasthan (Jaipur Bench) has
allowed the application of the defence under Section
311 Cr.P.C. and permitted to recall for cross-
examinations of witnesses No.PW/4 and PW/5. The
order of the Rajasthan High Court was challenged by
an aggrieved person before the Supreme Court which
has found that the defence had not given any
reasonable and convincing ground for recalling of
them. Thereupon, the Supreme Court set aside the
order of the Rajasthan High Court for recalling of both
the witnesses. In the meantime, both the witnesses
had been recalled and re-crossed in the trial Court in
compliance with the order of the Rajasthan High
Court. At this, the Supreme Court has directed in
para 24 of its decision to the trial Court not to take
into consideration the evidence of PW/4 and PW/5
recorded pursuant to the order of the High Court.

9. In the light of the propositions of law laid down
in the aforestated rulings, I would proceed to decide
this petition. Upon the meticulously and minutely
perusal of the application filed by the petitioner
before the trial Court, I find that no convincing
ground is given for recall of all the three witnesses for
being cross-examined on the contradictions,
omissions, inconsistencies and the discrepancies as
claimed by the defence and no satisfactory
explanation is given as to why the application is made
near about the delay of two years after the recording
of their evidence in the application. Moreover, at the
time of final arguments the defence would have an
opportunity to bring into the notice of the learned
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Special Judge the contradictions, omissions,
inconsistencies and discrepancies appearing in the
evidence of all the three witnesses to impeach their
trustworthiness and the learned Special Judge will
certainly take into consideration the same while
appreciating the prosecution evidence in a judgment
to be written by him. In these facts of the case, the
aforestated apprehension raised by the learned Public
Prosecutor appears to be true to me.

10. It is pertinent to mention at this stage that in
the course of arguments, the learned counsel for the
petitioner has placed reliance upon the decision
rendered by this High Court in the case of Imrat Lal
vs. State of M.P., 1996(1) MPWN 202. In the light of
the aforenoted three rulings of the Supreme Court,
the law laid down in this case stands overruled.

11. For the aforesaid reasons and discussion, I find
that this petition has no merits and substance, and
the learned Special Judge rightly dismissed the
application. Consequently, I disallow the petition
upholding the impugned order.

12. A copy of this order be sent without delay to the
Court of Special Judge (Atrocities) Vidisha for
information.

13. Accordingly, this petition is finally disposed of.

Certified copy as per rules.

(Rajendra Mahajan)
Judge
van

VANDANA VERMA
2018.01.20 11:52:09 +05’30’

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