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Sonu. …..Non vs State Of H.P. R ……Applicant on 26 February, 2020

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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5

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 in

conformity 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 be

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exercised 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 the

prosecution 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 is

an extraordinary one, where the non-
applicant/accused has been charged for
offences punishable under Section 376

IPC and Section 4 of the Protection of

Children from Sexual Offences Act, 2012,
therefore, in such circumstances, the
prosecution case cannot be made to

suffer only because the Public Prosecutor
failed to question PW13 Dr. Richa Gupta

with regard to DNA profiling, which is an
extremely vital evidence in this case to

enable 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 the

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exercise 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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