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2022 Supreme(Raj) 1425
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Dinesh Mehta, J.
Baljinder Singh & Ors. – Appellants
Versus
State Of Rajasthan & Ors. – Respondents
S.B. Criminal Misc. (Pet.) No. 5419/2022
Decided On : 02-09-2022
Lokesh Mathur and Sanjay Raj Pandit, Advocate., for the Appellant
S.K. Bhati, P.P., for the Respondents
The relevance and necessity of witness testimony in reaching a correct conclusion, and the duty of the Investigating Officer to record statements of relevant witnesses.
Headnote:
Section 311 - Criminal Procedure - Code of Criminal Procedure - 311 - 27 of the Arms Act, 3(2)(va) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act - 311
Fact of the Case:
The petitioners were being prosecuted for various offenses under the Indian Penal Code, Arms Act, and Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. During the prosecution evidence stage, the wife of the deceased moved an application under Section 311 of the Code of Criminal Procedure to be allowed to lead evidence as she was with the deceased in the hospital when he died.
Finding of the Court:
The court found that the wife's testimony was relevant and necessary for reaching a correct conclusion, as other witnesses had disclosed her presence at the scene. The court dismissed the petition, noting the negligence of the Investigating Officer in not recording the wife's statement despite her presence being shown by other witnesses.
Issues: The main issue was the allowance of the application under Section 311 of the Code of Criminal Procedure and the relevance of the wife's testimony in the case.
Ratio Decidendi: The court held that the wife's testimony was necessary for reaching a correct conclusion, and the application under Section 311 of the Code of Criminal Procedure was merited in this case.
Final Decision: The petition was dismissed, and the court directed the Superintendent of Police to take appropriate disciplinary proceedings against the erring officer for negligence.
JUDGMENT
Dinesh Mehta, J. - Instant petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code") impugns order dated 18.07.2022 passed by the Special Judge, Scheduled Caste & Scheduled Tribe (Prevention of Atrocities Cases), Sri. Ganganagar (hereinafter referred to as "the trial court"), whereby the application dated 07.01.2022 filed by the respondent No. 2 under Section 311 of the Code, has been allowed.
2. Shorn of unwanted details, the facts in brief are that the petitioners are being prosecuted for offence under Sections 302, 336, 458, 147, 148 & 149 of the Indian Penal Code, Section 27 of the Arms Act and Section 3(2)(va) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, pursuant to F.I.R. No. 75/2019 registered at Police Station Kesarisinghpur, District Sri. Ganganagar which was registered in furtherance of a complaint lodged by complainant (Raja Singh).
3. At the stage of prosecution evidence, after eight witnesses had been examined, respondent No. 2-wife of the deceased, moved an application dated 07.01.2022, under Section 311 of the Code and requested the trial court to permit her to lead evidence as she was with the deceased in the hospital, when he breathed his last.
4. It was inter alia stated in the application that though applicant (Jaspreet Kaur) is an eye-witness of entire incident, the Investigating Officer had failed/omitted to record her statement and include her name in the list of witnesses.
5. After considering the application and hearing rival parties, trial court allowed the application vide its order dated 18.07.2022 and included name of the applicant (Jaspreet Kaur) in the list of witnesses in red ink.
6. Mr. Mathur, learned counsel for the petitioner argued that impugned order passed by the trial court is illegal and contrary to settled canons of law. He argued that application came to be filed by the respondent No. 2-wife of the deceased, simply being affected by the fact that eight witnesses that were examined so far, have turned hostile. It was argued that in case, applicant was so interested, she ought to have moved the application under Section 311 of the Code at the first stage itself. It was also argued that the fact that the Investigating Officer has not included name of the respondent No. 2-wife of the deceased, itself is enough to prove that she was not an eye-witnesses of the incident and she has approached the Court by way of moving application to fill-up the lacunae.
7. Learned Public Prosecutor, on the other hand, submitted that true it is, that most of the witnesses have turned hostile but they have testified that respondent No. 2-Jaspreet Kaur was present on the spot. He also invited Court's attention towards application dated 04.04.2022 filed by the Investigating Officer, in which statement of the respondent No. 2 was filed with an application and accepted that respondent No. 2-wife of the deceased, was present with the deceased, and hence, in the interest of justice and to reach a correct conclusion, her evidence/statement is necessary.
8. In rejoinder, Mr. Mathur, learned counsel for the petitioner argued that application in question has been got filed by the prosecution through respondent No. 2, simply with a view to fill the lacunae left in the investigation.
9. In support of his contention that application ought not to have been allowed, learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Mohanlal Shamji Soni v. Union of India and another reported in AIR 1991 Supreme Court 1346 (Para 18), and judgment of Madras High Court rendered in the case of State by Inspector of Police v. S. Sankaran and another reported in 2005 Cri. L.J. 1474 particularly Para 11 thereof.
10. Heard learned counsel for the parties and perused the material available on record.
11. A perusal of the application dated 07.01.2022 filed by the applicant-respondent No. 2, clearly shows her stand that sh
