IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Cr.MP No. 815 of 2018 in
Cr. Appeal No. 405 of 2017.
Reserved on: 24.2.2020.
Decided on: 26.2.2020.
Sonu. …..Non-applicant/Appellant.
Versus
State of H.P. r ……Applicant-respondent.
Coram
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge .
Whether approved for reporting? 1 Yes.
For the non-applicant/ : Mr. Praveen Chauhan, Advocate.
appellant
For the applicant/ : Mr. Kunal Thakur, Deputy A.G.
respondent
Per Dharam Chand Chaudhary, Judge.
In this appeal, an application registered as Cr.MP No.
815 of 2018 filed under Section 311 of the Code of Criminal
Procedure by the respondent-State/prosecution for seeking
permission to re-examine PW13 Dr. Richa Gupta has been heard
by a Division Bench of this Court comprising Justice Tarlok
1
Whether the reporters of the local papers may be allowed to see the
Judgment? yes.
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2
Chauhan, J. and Justice Chander Bhusan Barowalia, J. and decided
vide judgment dated 7.9.2018. Both the Judges constituting the
.
Division Bench have, however, divided in their opinions, hence
dissenting judgments came be be passed in this application.
2. In view of the dis-agreement in the judgments
rendered by the Judges, constituting the Division Bench, the
matter was placed before the Chief Justice in terms of the
provisions contained under Section 392 of the Code of Criminal
Procedure. The Chief Justice as per order dated 26.10.2018 has
ordered to place the matter with the dissenting opinions of the
Judges constituting the Division Bench before this Court for
recording its opinion after such hearing as deemed appropriate.
It is how this mater landed in this court.
3. The present is a case where the charge against the
appellant-convict is that during the intervening night of 11 th/12th
May, 2014 at Village Sarahan, Tehsil and district Chamba he
subjected the prosecutrix (name with-held) to sexual intercourse,
who was about 12 years of age at that time and thereby
committed an offence punishable under Section 376 of the Indian
Penal Code and Section 6 of Protection of Children from Sexual
Offences Act, 2012.
4. The facts leading to file the application under Section
311 of the Code of Criminal Procedure have been succinctly
stated in both the judgments and as this Court has only to give
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3
its opinion about the dissenting view of the matter taken by the
Judges constituting the Division Bench, therefore, to detail the
.
facts of the case further would be a futile exercise and to over
burden the judgment unnecessarily.
5. It is, however, desirable to refer to the circumstances
leading to file application under Section 311 of the Code of
Criminal Procedure and as to whether the re-examination of
6.
r to
PW13 Dr. Richa Gupta is essentially required for just decision of
the case.
The grounds in the application for re-examination of
PW13 Dr. Richa Gupta in a nut shell are that consequent upon
the order passed by the trial Court in an application filed by the
prosecution for obtaining blood samples of the prosecutrix and
the accused for DNA Profiling, the I.O. PW11 SI Kamlesh Kumar
has made an application to Medical Officer, Regional Hospital,
Chamba for obtaining the blood samples of the accused and the
prosecutrix for DNA Profiling. The accused and prosecutrix were
also produced in the hospital before PW13 Dr. Richa Gupta. She
had taken the blood samples of both of them on FTA cards on
completion of codel formalities and handed over the same to the
police for needful. The grounds so raised finds support from oral
as well as documentary evidence available on record. PW11
while in the witness box has stated that an application for
obtaining the blood samples of the accused and the victim
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4
Ext.PW11/K was made by him in the trial Court. The same was
allowed vide order Ext.PW11/L. Subsequently, he filled the
.
identification forms Ext.PW11/M qua the victim whereas
Ext.PW11/N qua the accused. Their blood samples were obtained
on FTA cards.
7. Now if coming to the documentary evidence, the
identification memos Ext.PW11/M and Ext.PW11/N reveal that the
blood samples of the victim and the accused were obtained by
Dr. Richa Gupta. The same bears their signature in token of
taking their blood samples. The order Ext.PW11/L passed by
learned Sessions Judge, Chamba on the application Ext.PW11/K
made by the I.O. reveal that learned trial Judge after recording
satisfaction qua the DNA Profiling of blood of the accused is
essentially required for just decision of the case allowed the
same with a direction to the Superintendent, District Jail, Chamba
to produce the accused before the Medical Officer in Regional
Hospital, Chamba for drawing his blood sample.
8. Now if coming to the explanation as to why the re-
examination of the witness is required, the case of the
prosecution is that Dr. Richa Gupta while in the witness box could
not be examined qua this aspect of the matter. The statement of
Dr. Richa Gupta amply demonstrate that she has not been
examined at all qua this aspect of the matter. Although the
appellant-convict has contested and resisted the application on
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the ground inter alia that the prosecution had ample opportunity
before learned trial Court to have examined/re-examined Dr.
.
Richa Gupta at an appropriate stage in the trial Court and also
that at this belated stage to allow this application to re-examine
and consequently to re-examine this witness would be nothing
but to fill-up the lacuna left in the prosecution case and in that
event mis-carriage of justice and serious prejudice likely to be
caused to him. Yet the necessity or otherwise to re-examine
PW13 Dr. Richa Gupta has to be considered in the light of the
factual matrix hereinabove.
9. Now if coming to the divergent opinion formed by the
Judges, constituting the Division Bench, it is significant to point
out here that brother Justice Barowalia who has authored the
judgment for the Division Bench on taking into consideration the
given facts and circumstances and also the rival submissions as
well as analysing the provisions contained under Section 311 of
the Code of Criminal Procedure has dismissed the application
while drawing the following conclusion:
i) The witness was examined approximately three years back,
therefore, allowing the application and her re-examination would
amount to fill-up the lacuna left in the prosecution case;
ii) PW13 Dr. Richa Gupta while in the witness box has not
stated anything about taking the blood samples of the victim
and the accused, therefore, filing the application at a belated
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stage when the appeal is on hearing board is nothing but
amount to fill-up the lacuna. The first and foremost principle for
.
exercising the powers to recall a witness for re-examination is
that it is expedient and in the ends of justice to do so; and
iii) No prejudice, serious in nature, should be caused to the
accused by allowing the application and to re-call the witness for
re-examination.
10.
In the opinion of brother Barowalia, J. the re-
examination of the witness if allowed at a belated stage would be
nothing but to fill-up lacuna left in the prosecution case and also
that prejudice, serious in nature, is likely to be caused to the
accused in that event. Nothing has, however, come as to
whether the re-examination of the witness is required for just
decision of the case or not and the application has been ordered
to be dismissed.
11. Now if coming to the dissenting judgment authored
by brother Chauhan, J. the dis-agreement is based upon the
following factors:
i) If the re-examination of PW13 Dr. Richa Gupta is permitted,
no serious prejudice is likely to be caused thereby to the
appellant-convict nor such an exercise of power would result in
miscarriage of justice to him; and
ii) Allowing the application and to re-examine the witness
would not amount to fill-up the lacuna in the prosecution case.
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12. Brother Chauhan, J. in support of his dis-agreement
has placed reliance on the law laid down by the Apex Court by
.
way of several judicial pronouncements right from the year 1996
till 2017 as is apparent from paras-4 to 17 of the judgment he
authored. The legal principles culled out on the basis of the law
so discussed reads as follow:
i) Lacuna in the prosecution case must be understood as the
inherent weakness or latent wedge in the matrix thereof.
ii) the advantage of a lacuna in the prosecution case normally
go in favour of the accused but an oversight during the course of
trial cannot be treated as irreparable lacuna.
Iii) the function of the criminal courts is administration of
criminal justice and not to count errors committed by the parties
during the course of trial. The object of 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 piece of evidence on
record or leaving ambiguity in the statements of witnesses
examined by either side.
iv) The determinative factor is as to whether it is essential to
re-examine a witness for the just decision of the case.
v) The only object underlying Section 311 of the code is to
bring on record the evidence not only from the point of view of
the accused and the prosecution but also from the point of view
of the orderly society.
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vi) The nature, scope and object of Section 311 of the Code
dealing with the principles for exercise of discretionary power is
.
that the power under Section 311 of the Code though is vast
one and can be exercised at any stage of the trial. However,
should be exercised only in those cases where the evidence to be
tendered by the witness on re-call is germane to the issue
involved. In case such evidence could not be adduced or brought
on record due to an inadvertence, the power is not limited to re-
call a witness for further cross-examination with reference to his
previous statement but also to take additional evidence for any
reasons at a just decision.
vii) This discovery of truth is essential principles of any trial or
inquiry to render a just decision after discovering all relevant
facts.
viii) Of course power must be exercised judiciously and not
capriciously or arbitrarily as any improper or capricious power
may lead to undesirable results.
ix) 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.
x) The opportunity to cross-examine the witness qua the
additional evidence recorded on re-examination and to produce
rebuttal evidence, if any, should be given to the other party.
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xi) The very use of words such as “any Court”, “at any stage”,
or “or any inquiry, trial or other proceedings”, “any person” and
.
“any such person” clearly spells out that the provisions of Section
311 of the Code have to be exercised in the widest possible
terms and do not limit the discretion of the Court in any way.
Fair trial entails the interest of the accused, the victim and of the
society, therefore, fair trial includes the grant of fair and proper
opportunities to the parties.
to Where the offence is against
society, it is the unfortunate victim, who is the actual sufferer,
hence it is imperative for the prosecution to ensure that no stone
is left unturned to bring guilt home to the accused.
xii) That the power under Section 311 of the Code must be
exercised with caution and circumspection and only for strong
and valid reason as recall of a witness already examined is not an
opportunity as a matter of course and discretion given to the
court in this regard has to be exercised judicially to prevent
failure of justice.
xiii) that delay in filing the application for re-calling a witness is
one of the important factor and the same should be explained in
the application.
13. Besides, the principles culled out by the Apex Court
after examining the entire case law in (2013) 14 SCC 461,
titled Rajaram Prasad Yadav Vs. State of Bihar and another
have also been taken into consideration by brother Chauhan, J.
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14. The Apex Court in (2019) 6 SCC 203 , titled Manju
Devi versus State of Rajasthan and another has again
.
reiterated the legal principles hereinabove while holding that
discretionary powers under Section 311 Cr.P.C. is essentially
intended to ensure that every necessary and appropriate
measure should be taken by the court to keep the record straight
and to clear any ambiguity insofar as the evidence is concerned
and also ensure that no prejudice is caused to anyone. Also that
the age of the case itself is not a decisive factor to deny the
prayer made for re-examination of a material witness.
15. The reasons for taking a contrary view of the matter
to allow the application recorded by brother Chauhan, J. also
reads as follow:
“…..From a conspectus consideration of
the above decisions, it would be evidently
clear that the principles as culled out by
learned brother Barowalia, J., in para 8 of
the judgment, are in tune and inconformity with the judgments of the
Hon’ble Supreme Court. However in my
considered opinion, the salutary
provisions of Section 311 of the Code
have not been taken into consideration
as while considering an application under
this provision is one of the main objects
to be taken into consideration to enable
the Court to find out the truth and render
a just decision, such power can be27/02/2020 20:24:02 :::HCHP
11exercised at any stage of any enquiry,
trial or other proceedings. The object of.
Section 311 of the Code is, as a whole, to
bring on record evidence not only from
the point of view of the accused and theprosecution but also from the point of
view of the orderly society.
Adverting to the present case, it
has to be borne in mind that the same isan extraordinary one, where the non-
applicant/accused has been charged for
offences punishable under Section 376IPC and Section 4 of the Protection of
Children from Sexual Offences Act, 2012,
therefore, in such circumstances, the
prosecution case cannot be made tosuffer only because the Public Prosecutor
failed to question PW13 Dr. Richa Guptawith regard to DNA profiling, which is an
extremely vital evidence in this case toenable the Court to find out the truth and
render a just decision.
In my considered opinion, the
evidence of PW13 Dr. Richa Gupta is
essential to a just decision of the case as
it is necessary to find out truth or obtain
proper proof of facts of this case, which
would not only enable this Court to arrive
at a just but also a correct decision.
Undoubtedly, allowing this application is
going to cause some prejudice to the
accused/non-applicant, but then the27/02/2020 20:24:02 :::HCHP
12exercise of such power cannot be dubbed
as filing up lacuna in prosecution case.
because, as already stated above, re-
examination of the witness is essential for
a just and correct decision of the case….”
16. I have read both the judgments. But my views are
also at variance with that of my learned brother Justice
Barowalia. Being so, for the reasons to be recorded hereinafter
my opinion in the matter is also the same as has been formed by
brother Chauhan, J.
17. The oral as well as documentary evidence, discussed
at the outset, the prosecution case qua seeking permission of
the court for obtaining blood sample of the accused is duly
proved from the order Ext.PW11/L passed by learned Sessions
Judge, Chamba on the application Ext.PW11/K filed by the
prosecution. The identification memos Ext.PW11/M and
Ext.PW11/N amply demonstrate that Dr. Richa Gupta has taken
the samples of the victim of the occurrence and also the accused
on FTA cards. The blood samples were subsequently forwarded to
the Forensic Science Laboratory for DNA Profiling. The Forensic
Science Laboratory report is Ext.PX which discuss the blood
sample of victim and that of the accused Ext.P1 and Ext.P2 were
received there for analysis. The result under the heading
“observations” is that on the salwar and vaginal swab of the
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victim the DNA matches with the DNA Profile obtained from the
blood sample on FTA card of the accused. As already noticed at
.
the very outset PW13 Dr. Richa Gupta has not been examined at
all qua this aspect of the matter. The reasons, therefore,
obviously is an oversight and inadvertent omission on the part of
the learned Public Prosecutor. The necessity to re-examine PW13
Dr. Richa Gupta vis-a-vis the gravity and heinousness of the
offence
record. to
allegedly committed is writ large on the face of the
There should be fair trial between the parties. Allowing
to re-examine PW13 Dr. Richa Gupta is not to fill-up any lacuna
left in the prosecution case and rather required for just decision
of the case and to ensure complete justice to the parties on both
sides.
18. Though brother Chauhan, J. has also observed in last
part of the judgment that allowing the application at this stage is
likely to cause prejudice to the appellant-convict, however, for
the reasons recorded hereinabove, no prejudice is likely to be
caused to him as he will have an opportunity to cross examine
Dr. Richa Gupta and even also to produce evidence in rebuttal, if
so advised. The present is also not a case where the application
should be dismissed only because of filed at a belated stage, for
the reasons that plain reading of section 311 of the Code amply
demonstrate that court may at any stage of inquiry, trial or other
proceeding under the Code re-call and re-examine any person
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already examined as witness if his/her evidence appears to it to
be essential for just decision of the case.
.
19. In view of the legal principles discussed hereinabove
and the given facts and circumstances, the present in my
considered opinion is a case where PW13 Dr. Richa Gupta is
required to be re-examined as to do so is essentially required for
just decision of the case.
20.
The net result of the aforesaid discussion would,
therefore, be that the application deserves to be allowed and the
witness Dr. Richa Gupta re-called for re-examination in terms of
the judgment rendered by brother Tarlok Chauhan, J. Ordered
accordingly.
(Dharam Chand Chaudhary),
Judge.
February 26, 2020,
( vs)
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