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Masoom Hussain Shah vs State And Ors. on 3 November, 2018

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HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

CRR No. 58/2012, IA Nos. 99001/2014 and 52/2012

Date of order: -03.11.2018
Masoom Hussain Shah Vs. State and ors.
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. B.S. Salathia, Sr. Advocate with
Mr. Sarfraz Shah, Advocate.
For respondent (s) : Mr. Amit Gupta, Dy. AG.

1. Through the medium of the instant Criminal Revision Petition,
petitioner seeks quashment/setting aside of the impugned order dated
11th August, 2012, passed by the learned Principal District and
Sessions Judge, Jammu under Section 540 of the Cr.P.C, by virtue of
which prosecutrix/ respondent No. 4 herein has been recalled as a
witness, whose statement was already recorded before the Court on
26th May, 2012 in a free and fair manner and without any pressure,
force or coercion. The petitioner has also prayed that the statement
of the respondent No. 4 may kindly be deferred, which has been fixed
on 27th August, 2012 in the Court of learned Principal District and
Sessions Judge, Jammu till the disposal of Revision Petition.

2. The factual matrix of the case is that a false and frivolous FIR was
lodged against the petitioner in Police Station Janipur, Jammu on 01-
12-2011 under Section 376, 452 and 323 RPC and thereafter, the
Challan was presented before the Court on 23rd of January, 2012,
charges were framed on 23rd of January, 2012. After framing of

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charges, the Learned Court below fixed the calendar date for
recording the statement of the prosecutrix. From the date of framing
of charges till the date of recording the statement of the prosecutrix,
more than 21 dates were fixed by the learned Court below. Finally,
on 26th of May, 2012, the prosecutrix fairly made the statement
before the Court under Section 164 Cr.P.C in Camera and out rightly
denied the allegations and charges framed against the accused. 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 petitioner has neither committed any offence
nor she knows the petitioner. After period of two months, the
prosecutrix moved an application through Public Prosecutor under
Section 540 Cr.P.C. The application was strongly opposed by the
petitioner by way of objections and also on the basis of record
annexed.

3. The petitioner has assailed the aforesaid impugned order on the
following grounds:-

i) That the order impugned dated 11-08.2012 is against the
facts and the record annexed by the petitioner in the
objections filed in the application moved by the prosecutrix
through Learned Public Prosecutor.

ii) That the Court below has not appreciated the facts of the
case, it is relevant to mention here that the conduct of the
prosecutrix was fairly explained in the objections wherein
one of the occasion the prosecutrix has torn apart the
warrant and even tried to chew and shallow a part of it.
Accordingly the authorities of Police Station, Janipur
entered a report with respect to offence under Section 173
of RPC being a report of 36 of Daily Register dated 19-05-
2012 and a copy of the same was produced before the
Court of Session Judge, Jammu along with the report with
respect of non-execution of warrant.

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iii) That the Court below has taken the lenient view and on
dated 22.05.2012 by canceling the warrant issued against
the prosecutrix who herself was present before the Court.
The prosecutrix was directed to put her present on 24th
May, 2012 as the calendar was fixed for three days. On 24th
May, 2012, she was restrained by her husband to approach
the Court for recording her statement. The prosecutrix was
threatened by her husband that if she gives any statement
in the Court, she has to face the fatal consequences.

iv) That on 25th of May, 2012 the prosecutrix in her full senses
approached the Court and openly stated before the Court
that she has been threatened by her husband to make any
statement before the Court, as such the prosecutrix seeks
kind indulgence of this Hon’ble Court to provide her
protection so that she made a fair statement before the
Court.

v) That the Court below entertained the application of
prosecutrix and directed the learned Chief Judicial
Magistrate to provide security to prosecutrix so that she
gave fair statement before the Court without any pressure,
force, or coercion. On 25th May, 2012 by the order of Chief
Judicial Magistrate, Jammu, prosecutrix was sent to
women shelter house, namely, Neha Ghar at Kachi Chawni
with the directive of Officer Incharge thereof to make
arrangement of safe stay of the applicant on 25.05.2012.
On 25.05.2012, respondent No.3 was directed to make safe
travel of the petitioner before the Hon’ble Court of Learned
Principal District and Sessions Judge, Jammu to Neha
Ghar and further for her safe travel from said place to the
Court of Session for recording her evidence on 26-05-2012.
It is pertinent to mention here that she remained there in
the safe custody of Court and thereafter, Neha Ghar and
till the time of custody, she was neither allowed to meet any
person nor was she allowed to go outside. In such peculiar
circumstances, the grounds taken by the Public Prosecutor
in the application under Section 540 Cr.P.C that the
prosecutrix was under the influence of drugs is totally
wrong and is concocted. Copy of the order of Learned
Chief Judicial Magistrate, Jammu is enclosed herewith and
marked as Annexure. ‘G’.

vi) That the prosecutrix has made the statement in a free and
fair manner without any influence of force, pressure and
coercion and she was even questioned by the Learned

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Principal Sessions Judge, Jammu that whatever she is
deposing before the Court on her own accord or on the
influence of any other person. She openly made the
statement that she is giving the true statement and
whatever has been stated in the FIR and the statement
made under Section 164-A Cr.P.C is totally wrong. The
prosecutrix was also cross-examined by the Learned Public
Prosecutor in a cross-examination, she fairly stated that
she had lodged FIR under the influence of her husband
and she was also restrained by him to give any statement
before the Court. Copy of the statement is already enclosed.

vii) That the Learned Court below has not appreciated the fact
that she has herself approached the Court, seeks the
protection, she remained in the safe custody by the order of
the Court. Thereafter, she made a statement before the
Court in Camera and no question of any influence by any
person arose. Therefore, the grounds taken in the
application that she was under the influence of drug is
totally wrong and is not worth appreciating.

viii) That the Learned Court below has neither appreciated the
facts nor appreciated the law. Section 540 Cr.P.C has to be
taken into consideration with great care and caution and
before allowing any application under Section 540 Cr.P.C,
the court has to see the grounds of filing this application, if
the Court observes that the grounds taken in the
application and intention of filing the application.

4. I have considered the rival contentions. Counsel for petitioner has
reiterated all grounds taken in petition, whereas counsel for State has
supported the order impugned.

5. From the perusal of file it is evident that victim who was 34 years old
at the time incident, has already got her statement record before trial
court on 26/5/2012, wherein she has stated that she does not know
accused; accused has done nothing with her; accused neither
abducted her nor raped her .She was declared hostile and was cross
examined by PP, but nothing incriminating was found against

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accused. In this way she has retracted her statement given under
section 164-A Cr.P.C. She also denied the contents of seizure
memos. It is worthwhile to mention here that victim was identified at
the time of giving statement before court by her husband and PW Dr.
Jotishima. Thereafter, it appears that PP filed an application u/s 540
Cr.P.C on behalf of victim that she be recalled again for giving fresh
statement. She stated that her previous statement was recorded under
force and threat to life and under the influence of drug; court below
after inviting objections allowed the application.

6. I have given my thoughtful consideration to whole aspects of the
matter and law on the point.

7. Section 540 reads as under :

“540. Power to summon material witness, or
examine person present.

Any Court may, at any 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 essential to the just
decision of the case.”

8. Bare perusal of this section, it is evident that it consists of two parts.

First part gives discretionary power to court in summoning 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. Second part of section is mandatory and it cast a duty
upon the court to call and examine or recall and re-examine any such
person if his evidence appears to it essential to the just decision of the

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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. In similar circumstances of case, the apex
court in similar set of circumstances ,wherein witness stated nothing
during trial at first instance ,but later on moved an application for
recording his statement on the ground that he was given threat, gas
held as under:-

9. In Rajaram Prasad Yadav vs. State of Bihar Anr., reported in
AIR 2013 SC 3081 (decided on 4 July, 2013), Hon’ble Apex Court
held as under:-

“22. ……………………………………….

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.)”

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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:

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
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

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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 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 the Sessions

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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 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 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

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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 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

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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 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 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

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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.”

10. In view of above law, it is evident that plea of victim that on the
earlier occasion he turned hostile under coercion and threat meted out
to him 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 one PW Dr. Jotishima at the time of recording of her
previous statement before court below. At the time of her evidence in
Court or subsequent to her evidence she never made any complaint to
the court or any police officer that accused persons had yielded any
pressure upon her to turn hostile to the prosecution and to give a go
by to the prosecution case. When there is no ambiguity in previous
statement or nothing to explain, to put question in re-examination the
witness cannot be recalled or re-examined. The sole object of witness
to give change to the version already given in the Court is not the
object of Section 540 Cr.P.C. The re-trial cannot be asked under the
provisions of Section 540 Cr.P.C.

11. In view of the above, this Criminal Revision Petition is allowed and
the impugned order dated 11.08.2012, passed by the learned Principal
District and Sessions Judge, Jammu is set aside. Record be sent back
to the trial Court.

(Sanjay Kumar Gupta)
Judge

Jammu
03.11.2018
Ram Krishan

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