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SUPREME COURT OF INDIA
S.S. Nijjar, F.M. Ibrahim Kalifulla, JJ.
Sister Mina Lalita Baruwa - Appellant
Vs.
State of Orissa and Ors. - Respondents
Criminal Appeal No. 2044 of 2013 (Arising out of SLP (Crl.) No. 1103 of 2012)
Decided On: 05.12.2013
Criminal Procedure Code - Section 301 - Evidence Act - Section 138 – Tenant – Accused aided for the commission – Related to the Evidence - Appellant was stated to have been dragged to a nearby building called where 8thaccused Respondent herein alleged to have raped her while other accused aided for commission of said offence apart from molesting her - It was pointed out by learned senior Counsel appearing for Appellant, that in Exhibit-8 either in note or in various columns of format or in proceedings recorded there was no reference to any statement made by Appellant as regards behavior of Respondent except mere identification of suspects, namely Respondents and wrong identification of an under trial prisoner by name – Held, Therefore paramount requirement is just decision and for that purpose 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 Court it is needless to state that exercise of such power should be made judicially and also with extreme care and caution - Having regard to our above conclusions court find that order of trial Court as well as that of High Court cannot be sustained and while setting aside same court direct trial Court to recall and call upon prosecutor to cross-examine the said witness on the aspect relating to the statement, namely Sister Mina identified accused as said suspect gave her a slap pulled her wearing Sari squeezed her breasts and did not commit any other overt act vis-à-vis contents of statement recorded by time of test identification parade when Appellant identified Respondent has been prayed for on behalf of Appellant and also provide an opportunity to Appellant to file written arguments on her behalf as provided Under Section 301 of Code of Criminal Procedure - Since trial was withheld by virtue of pendency of this appeal till this date trial Court is directed to comply with directions as above and conclude proceedings in accordance with law expeditiously, preferably within three months from date of production of copy of this order conspicuous reading of Section 311 Code of Criminal Procedure would show that widest of powers have been invested with Courts when it comes to question of summoning a witness or to recall or re-examine any witness already examined - A reading of provision shows that expression has been used as a pre-fix other proceeding person as a witness person in attendance though not summoned as a witness and person already examined - By using said expression as a pre-fix to various expressions mentioned above it is ultimately stated that all that was required to be satisfied by Court was only in relation to such evidence that appears to Court to be essential for just decision of case – Appeal allowed
JUDGMENT :
F.M. Ibrahim Kalifulla, J.
1. Leave granted.
2. This appeal is directed against the order of the High Court of Cuttack in Criminal Miscellaneous Case No. 1746 of 2011 dated 05.01.2012. The informant is the Appellant before us. The informant is stated to be a Catholic Nun and according to her she was brutally assaulted, molested and also gang raped by the assailants who have been arrayed as accused in the session's case which is being tried by the District and Sessions Judge in S.T. No. 243 of 2010.
3. Briefly noting the contents in the charge-sheet, we find that one Swamy Laxmananda Saraswati was killed in Kandhamal District, which led to a communal violence in the entire district. The Appellant and another Jesuit father by name Thomas Chellan and some others who were residents of Jesuit Home called 'Divyajyoti Pastoral Centre', Kanjamendi of district Kandhamal, fearing attack by the unruly mob took shelter in the house of one Prahallad Pradhan of village Kanjamendi on 24.08.2008.
4. On 25.08.2008, according to the Appellant, around 1 p.m. a mob of about 40 to 50 persons came to the residence of the said Prahallad Pradhan, dragged her and other priests to the road while some of the members of the mob molested her and also brutally assaulted her. The Appellant was stated to have been dragged to a nearby building called 'Jana Vikash' where the 8thaccused, Respondent No. 9 herein, alleged to have raped her while the other accused aided for the commission of the said offence apart from molesting her.
5. The Appellant was stated to have been subsequently handed over to the Block Development Officer of K. Nuagaon who in turn produced the Appellant and the Jesuit father Chellan to the Inspector In-charge of Baliguda Police Station for necessary action. Thereafter, the Appellant filed her complaint on 26.08.2008, whereafter she was medically examined at Baliguda Sub-Divisional Hospital and that her wearing apparels were sealed and sent to State FSL, Bhubaneswar along with the exhibits collected by the medical officer. Those materials were stated to have been subsequently sent to CFSL Kolkata for DNA Profiling Test.
6. Appellant in her complaint stated that she would be in a position to identify the assailants though she was not knowing their names.
7. The issue with which we are now concerned relates to an alleged incorrect version stated by PW-18 before whom the Test Identification Parade was held on 05.01.2009. PW-18 was the Sub-Divisional Judicial Magistrate, Cuttack on that date. In the course of examination of PW-18, the prescribed format of Schedule XLVII of Code of Criminal Procedure along with the proceedings recorded by him were marked as Exhibit-8. The signatures of the witnesses were marked as Exhibits-8/1 to 8/5. The description of test identification parade, conducted by him, was marked as Exhibit-8/6.
8. It was pointed out by Mr. Colin Gonsalves, learned senior Counsel appearing for the Appellant, that in Exhibit-8 either in the note or in the various columns of the format or in the proceedings recorded by PW-18 on 05.01.2009, there was no reference to any statement made by the Appellant as regards the behaviour of Respondent No. 9 except mere identification of the suspects, namely, Respondents No. 3 and 9 and wrong identification of an under trial prisoner by name Santosh Kumar Swain. The learned senior Counsel then brought to our notice a specific statement made by PW-18 in the course of the chief-examination which reads as under:
Sister Mina Baruwa identified accused Santosh Patnaik as the said suspect gave her a slap, pulled her wearing Saree, squeezed her breasts and did not commit any other overt act.
9. The grievance of the Appellant is that while such an incorrect version was spoken to by PW-18 as an authorized officer who conducted the test identification parade, there was not even a suggestion put to PW-18 by the prosecution and thereby the said statement remained uncontroverted in so far as it related to the e
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