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The State Of Tripura Through … vs Sri Panna Ahamed on 30 May, 2019

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HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_

Criminal Petition No.2/2019.

The State of Tripura through Secretary, Home,
Govt. of Tripura, New Capital Complex, Agartala,
P.S. : NCC, Pin – 799 006.
…………… Petitioner.
Vrs.

1. Sri Panna Ahamed, S/o Md. Ayat Ali,
resident of South Ramnagar, Near PEC Brick field,
P.S : West Agartala, District – West Tripura.
2. Sri Dipak Das, S/o Lt. Balu Chandra Das
of Durjoynagar (Near Narsingarh Institute),
P.S : NCC, Dist : West Tripura.
3. Sri Gautam Das, S/o Sri Pradip Das
of Balukia Tilla, Kunjaban,
P.S : East Agartala, Dist : West Tripura.
………… Respondents.

_B_E_F_O_R_E_
HON’BLE THE CHIEF JUSTICE MR. SANJAY KAROL

For Petitioner(s) : Mr. S Kar Bhowmik, Spl. P. P.

For Respondent(s) : Mr. P K Biswas, Sr. Advocate,
Mr. Debojit Biswas, Advocate.

Date of hearing : 2nd May, 2019.

Date of judgment : 30th May, 2019.

Whether fit for reporting : Yes No

JUDGMENT

Fair trial is the main object of criminal procedure and

it is the duty of every court to ensure that such fairness is

neither hampered nor threatened. It entails interest of the

accused, the victim and the society, and as has been held by
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the Apex Court in SectionNatasha Singh v. CBI, (2013) 5 SCC

741 (2 Judge Bench) it includes grant of fair and proper

opportunities to all concerned, for fair trial is not only a

constitutional but a human right.

[2] Free and fair trial is a sine qua non of SectionArticle 21 of

the Constitution. Any hindrance or obstruction would be

violative of SectionArticle 14. Denial of a fair trial is as much an

injustice to the accused as is to the victim and the society. It

necessarily requires a trial before an impartial Judge, a fair

prosecutor and in an atmosphere of judicial calm. Since the

object of trial is to mete out justice and convict the guilty and

protect the innocent, trial should be a search for the truth and

not about over technicalities and must be conducted under such

rules as would protect the innocent and punish the guilty.

Justice should not only be done but should be seemed to have

been done to the innocent. This is what the Apex Court

reiterated in SectionState of Haryana v. Ram Mehar and Ors.,

(2016) 8 SCC 762(2 Judge Bench).

[3] Justice, Krishnaiyer, J in SectionManeka Sanjay Gandhi

and Anr. v. Rani Jethmalani, (1979) 4 SCC 167 (2 Judge

Bench) observed that assurance of a fair trial is the first

imperative of dispensation of justice. Also referring to SectionRam

Chander v. State of Haryana,(1981) 3 SCC 191 (2 SectionJudge

Bench) and Nellore v. Insha Ramana Reddy, 1972 Crl.L.J

1485 (2 Judge Bench) it was observed that “every criminal trial
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is a voyage of discovery in which truth is the quest, it is the

duty of a presiding Judge to explore every avenue open to him

in order to discover the truth and to advance the cause of

justice.”

[4] That assurance of fair trial is a necessary

concomitant of rule of law stands reiterated by the Apex Court

in SectionVinod Kumar v. State of Punjab, (2015) 3 SCC 220 (2

Judge Bench) which reads as follows :

“3. The narration of the sad chronology shocks the
judicial conscience and gravitates the mind to pose
a question, is it justified for any conscientious trial
Judge to ignore the statutory command, not
recognize “the felt necessities of time” and remain
impervious to the cry of the collective asking for
justice or give an indecent and uncalled for burial to
the conception of trial, totally ostracizing the
concept that a civilized and orderly society thrives
on rule of law which includes “fair trial” for the
accused as well as the prosecution.”

[5] Rejection of the prosecutors request for recalling the

prosecutrix as a witness for her re-examination, more so at her

behest, has warranted this Court to revisit the aforesaid

principles of fair trial – an indispensible tool of criminal justice

system.

[6] On 27th June, 2016 prosecutrix got registered a

complaint against the accused under Sections 342, Section376 and Section506

IPC at West Agartala Women Police Station being FIR No.2016
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WAW 052. Her multiple statements including the one under

Section 164 Cr.P.C led the investigator to file the charge sheet,

in relation to which, the accused were put to trial for having

committed offences under Sections 342, Section376 and Section506 IPC

against accused Panna Ahamed and Section 212 IPC against the

other two accused namely Dipak Das and Gautam Das.

[7] On 4th June, 2018, immediately after part-

completion of cross-examination of her testimony, prosecutrix,

through the Public Prosecutor expressed her desire of appointing

another lawyer. As such, matter was adjourned. Undisputedly,

State took a decision to change the Public Prosecutor, entrusting

the brief to a Special Public Prosecutor, who without much

delay, filed an application under Section 311 of Cr.P.C seeking

re-examination of the prosecutrix necessarily required for just

decision of the case. Necessity thereof, stands assigned in Paras

2 and 3 of the application which read as under:

“2. In this regard the prosecution humbly submits
that the wearing apparels of the victim and one bed
cover recovered from the scene of crime need to
prove by her which were left out earlier. In this
regard the signatures of the victim need to be
proved on the two seizure lists dated 27.6.2016.
Also her signature needs to be proved on the
medical consent form.

3. Further there is ambiguity in her evidence
regarding her standing on sofa and trying to open
the door at page 1 of her evidence. Also at 5th 6th
and 7th page of her evidence dated 04.06.18 there
are certain explanations need to be taken regarding
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biting by the A/p, availability of phone no of the
A/p, regarding her resistance and kicking at the
time of incident, regarding slap given by the A/p,
and she being abused by the A/p in slang language
and so on.”

[8] The trial Judge, vide impugned order dated 11th

July, 2018 allowed the application qua averments made in Para-

2 (supra) but rejected the prayer relating to Para-3 (supra),

holding that “there is no ambiguities in the evidence regarding

the facts as pointed out in Para-3 of petition.” While arriving at

such conclusion, the court relied upon the decisions rendered by

the Apex Court in SectionRammi Alias Rameshwar v. State of M.P,

(1999) 8 SCC 649 (2 Judge Bench) and Zahira Habibullah

Sheikh and Anr. v. State of Gujarat Anr., (2004) 4 SCC

158 (2 Judge Bench).

[9] At this juncture, it be only observed that we are

dealing with the case of a crime against women. FIR was

registered on 27th June, 2016; challan was presented on 13th

July, 2016 and charges framed on 9th August, 2016. Prosecutrix

was examined on two dates, i.e on 4th June, 2018 and 10th June,

2018. On the second date, she expressed her desire of engaging

her counsel. Without delay, on 11th July, 2018 itself, an

application in question was filed and a Special Public Prosecutor

engaged who argued the matter and same day such application

stood rejected.

[10] Section 311 of Cr.P.C reads as under :

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“311. 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 to be
essential to the just decision of the case.”

[11] Here the term „witness” would mean a person who

is capable of providing information by way of deposing as

regards relevant facts, via an oral statement, or a statement in

writing, made or given in a court or otherwise. [See: SectionMadhu

Alias Madhuranatha and Anr. v. State of

Karnataka,(2014) 12 SCC 419 (2 Judge Bench)].

[12] It is a settled principle of law that a criminal case is

built on the edifice of evidence, admissible in law, direct or

circumstantial. The Apex Court in SectionSwaran Singh v. State of

Punjab, (2001) SCC (Cri) 190 (2 Judge Bench) has expressed

the hardships through which a witness undergoes during trial.

The „need‟, „significance‟ and „importance‟ of the witnesses stand

highlighted by the Apex Court, so also the reasons preventing

the witness from staying away from participation and one of the

reasons being the malady in the system. The Court highlighted

the problem in the following term:

“A witness in a criminal trial may come from a far-
off place to find the case adjourned. He has to come
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to the court many times and at what cost to his own
self and his family is not difficult to fathom. It has
become more or less a fashion to have a criminal
case adjourned again and again till the witness tires
and gives up. It is the game of unscrupulous
lawyers to get adjournments for one excuse or the
other till a witness is won over or is tired. Not only
is a witness threatened, he is abducted, he is
maimed, he is done away with, or even bribed.
There is no protection for him. In adjourning the
matter without any valid cause a court unwittingly
becomes party to miscarriage of justice. A witness is
then got treated with respect in the court. He is
pushed out from the crowded courtroom by the
peon.”

[13] The object of trial is only to unearth the truth, for

failure to do the same would result into miscarriage of justice

and negation of rule of law; violation and infringement of

Constitutional obligation, duty and a right, more so by the

stakeholders engaged in the process be it the Court,

investigator, prosecutor or a defence counsel.

[14] The Court now proceeds to examine the extent of

and the manner of power, the court can exercise under Section

311 Cr.P.C.

[15] Taking note of its earlier decision rendered in

SectionJamatraj Kewalji Govani v. State of Maharashtra, AIR

1968 Supreme Court 178 (3 Judge Bench); SectionMohanlal

Shamji Soni v. Union of India and Anr., 1991 Supp.(1)
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SCC 271 (2 Judge Bench), the Apex Court in SectionRajaram Prasad

Yadav v. State of Bihar and Anr., (2013) 14 SCC 461 (2

Judge Bench) culled out the following principles with regard

thereto :

“17. 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:

17.1. 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?

17.2. 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.

17.3. 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.

17.4. 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.

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17.5. 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.

17.6. The wide discretionary power should be
exercised judiciously and not arbitrarily.

17.7. 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.

17.8. 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.

17.9. 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.

17.10. 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.

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17.11. 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.

17.12. The additional evidence must not be
received as a disguise or to change the
nature of the case against any of the party.

17.13. 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.

17.14. 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.”

(Emphasis supplied).

[16] In Rajaram(supra) the Apex Court held

that Section 311 Cr.P.C. would show that (a) widest of the
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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. (b) A reading of the provision

shows that the expression “any” has been used as a pre-fix to

“court”, “inquiry”, “trial”, “other proceeding”, “person as a

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

witness”, and “person already examined”. (c) 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 to be in consonance with the prescription contained

in Section 311 Cr.P.C. (d) 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.

[17] In Ram Mehar(supra) the Court emphatically

pointed out that for exercising the power under Section 311

Cr.P.C., case must, arouse judicial conscience.

[18] Since the trial court led emphasis on the decisions

rendered in Rammi (supra) and Jahira (supra), the court only

reminds the following principle laid down in former :

“17. There is an erroneous impression that
re-examination should be confined to
clarification of ambiguities which have been
brought down in cross- examination. No
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doubt, ambiguities can be resolved through
re-examination. But that is not the only
function of the re-examiner. If the party who
called the witness feels that explanation is
required for any matter referred to in cross-
examination he has the liberty to put any
question in re-examination to get the
explanation. The Public Prosecutor should
formulate his questions for that purpose.
Explanation may be required either when the
ambiguity remains regarding any answer
elicited during cross-examination or even
otherwise. If the Public Prosecutor feels that
certain answers require more elucidation
from the witness he has the freedom and the
right to put such questions as he deems
necessary for that purpose, subject of course
to the control of the court in accordance with
the other provisions. But the court cannot
direct him to confine his questions to
ambiguities alone which arose in cross-
examination.

18. Even if the Public Prosecutor feels that
new matters should be elicited from the
witness he can do so, in which case the only
requirement is that he must secure
permission of the court. If the court thinks
that such new matters are necessary for
proving any material fact, courts must be
liberal in granting permission to put
necessary questions”.

(Emphasis supplied).

[19] And in the latter [Zahira (supra)] that:

“46. Ultimately, as noted above, ad nauseam
the duty of the Court is to arrive at the truth
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and subserve the ends of justice. Section
311 of the Code does not confer any party
any right to examine, cross-examine and re-
examine any witness. This is a power given
to the Court not to be merely exercised at
the bidding of any one party/person but the
powers conferred and discretion vested are
to prevent any irretrievable or immeasurable
damage to the cause of society, public
interest and miscarriage of justice. Recourse
may be had by Courts to power under this
section only for the purpose of discovering
relevant facts or obtaining proper proof of
such facts as are necessary to arrive at a just
decision in the case.”

Unfortunately such principles stood ignored and the

ratio not correctly appreciated and applied.

[20] Whether witness is required to be recalled or not, is

dependent upon the prevalent facts and circumstances,

emanating from the record, but what is important is that power

must be exercised in view of the expression „shall‟ if it is

essential for just decision of the case. Indeed, such power which

is wide must be exercised with circumspection for wider the

power, greater the responsibility upon the Court. It cannot and

should not be allowed to prejudice the accused or only fill up the

lacunae and as has been held in Manan Shheikh v. State of

West Bengal, (2014) 133 SCC 59, such power can be

exercised in relation to a particular case with regard to a

particular witness on more than one occasion.
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[21] Reiteratingly, it is pointed out that it is the duty of

the Court to not only do justice but ensure it is so being done.

In fact, the Apex Court in Mohanlal(supra) observed that if

judgments are delivered on “inchoate, inconclusive and

speculative presentation of facts”, ends of justice would be

defeated. The Court in the very same decision, also took note of

the corresponding power under the provisions of SectionCr.P.C and the

other statutes, including Section 165 of the Indian Evidence Act.

[22] Aforesaid principles when applied to the instant

facts leads to the only irresistible conclusion that the view taken

by the trial court, that there is no ambiguity in the evidence

regarding the facts as pointed out in Para-3 of the petition, is

factually incorrect, not born out from the record, unreasonable,

illogical and perverse. The principles of law laid down in Rammi

(supra) Zahira (supra) were not correctly appreciated and

applied. The trial court failed to notice that during investigation,

statement of the prosecutrix was got recorded on more than

one occasion. In view of her statement, she ought to have been

declared as a hostile witness or re-examined seeking

clarification and elucidation.

[23] To illustrate the point, learned Public Prosecutor

points at least four fact situation issues which required

elucidation/clarifications; (a) at the time when prosecutrix tried

to open the door whether she was standing on the „sofa’ or not;

(b) whether the accused had given her bite marks or not; (c)
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did the prosecutrix know the phone number of the accused (d)

did the prosecutrix resist the advances of the accused and the

resultant reaction, if any, of the accused slapping her.

[24] With each one of these facts, one finds that if only

the court had been vigilant, the ambiguities which crept in her

statements, so recorded on 4th June, 2018 and 10th July, 2018

could have been avoided. Her statement that she was standing

on the sofa (page-30) required to be explained in view of her

previous statement (Page-24) where she stated to have got up

from the sofa. She was not standing on the sofa. Similarly, with

regard to the bite marks, her statement at Page-34 was

required to be explained in view of her previous statement at

Page-21. On the issue of accused having called her on phone

(Page-35), her statement required clarification, more so, in view

of her previous statement (Page-24). On the issue of resistance

of the overt acts and the force used by the accused, her

statement at Page-36 required to be clarified in view of her

previous statement at Page-21 and Page-25. It certainly cannot

be said that there is no ambiguity. After all, we are dealing with

a case of a crime against woman and the prosecutrix,

immediately, without any delay, perhaps finding the

professional conduct of Public Prosecutor to be desirable, in

despair, sought to avail services of a lawyer of her choice.

Promptly, considering the gravity and the nature of the alleged

crime, State acceded to such requirement, by appointing a
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Special Public Prosecutor. It is in this backdrop, Court finds the

principles culled out by the Apex Court in Rajaram(supra);

Rammi(supra) as also Zahira(supra) to be squarely applicable

in the present case.

[25] The Court is duty bound to unearth the truth. If the

witness is recalled, no prejudice much less serious prejudice

would be caused to the accused. Prosecution is not trying to fill

up the lacuna. In fact, material for re-examining the witness is

already on record. Fault in ignoring the same is certainly not

that of the prosecution, it is of the people manning the system

of Administration of Justice. In fact, with the prosecutrix having

expressed her reservation with regard to the manner in which

trial was conducted, the court ought not to have allowed further

recording of her statement. Failure to do so, has only resulted

into negation of rule of law, violation of Constitution and human

right.

[26] The court lost sight of the fact that the prosecutrix

was trying to help the prosecution, as also the Court in

unearthing the truth and nothing but the whole truth. All that

she wanted was clearance of ambiguities arisen during the

course of her cross-examination. Certainly, it was not an act of

an afterthought. She is not a trained witness or of professional

lawyer, conversant with the procedures of trial. Perhaps sensing

that truth was being suppressed or compromised, she desired

change of counsel and this only, to prevent miscarriage of
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justice. It is here one finds the observations made by the Apex

Court in Natasha Singh(supra), Ram Mehar (supra), Rani

Jethmalani(supra) and Maneka Sanjay Gandhi (supra) to

apply in equal force. In the attending facts the elucidation of

certain answers was necessarily required, without prejudicing

the cause of the accused.

[27] With vehemence Mr. P K Biswas, learned Sr.

Advocate, argues that the Spl. Public Prosecutor cannot put a

leading question to the witness. Well, this cannot be a reason to

disallow the application, for whether a question put to the

witness is leading or not and is permissible, in view of Section

137, 138 141 of the Evidence Act or not, is for the trial court

to consider during trial and not a factor for consideration or a

requirement under Section 311 of Cr. P.C.

[28] It is, under these circumstances, the impugned

order dated 11th July, 2018 passed by learned Additional

Sessions Judge, Fast Track Court, West Tripura, Agartala, is

hereby quashed and set aside. The application dated 11 th July,

2018 filed by the prosecution is allowed.

[29] Parties shall appear before the trial court on 17th

June, 2019 when a date shall be fixed by the trial court for re-

examination of the prosecutrix(PW.1), which needless to

mention shall be carried out promptly in accordance with law.
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[30] It is seen that the case relates to the year 2016 and

as such hearing is expedited. The trial court shall ensure that all

trial takes place, subject to the calendar of the Court, on a day

to day basis. Parties shall fully co-operate and not take any

unnecessary adjournment.

It is made clear that any observation made herein,

shall not be construed to be an expression/opinion on the merits

of the case, for each case has to be dealt with, on its own

merits and the trial Court shall decide the matter, uninfluenced

of the same. Record be sent back immediately.

(SANJAY KAROL),CJ.

Sukhendu

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