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IN THE HIGH COURT PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rajesh Bindal
Criminal Misc.- M No. 33161 of 2011 (O&M)
Phul Singh
v.
State of Haryana
{Decided on 26/11/2011}
(B) Criminal Procedure Code, 1973, S.311--Examination of Hostile Witness--Even if the public prosecutor had moved an application for deleting his name from the list of prosecution witnesses and requested for not recording his statement, the court could still exercise the power under Section 311 Cr.P.C. to get the statement of the petitioner recorded--As far as its evidentiary value is concerned, the same could be considered at the time of conclusion or trial. (Para 18)
(C) Criminal Procedure Code, 1973, S.311--Examination of Hostile Witness--It will be a proper exercise of powers of the Court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. (Para 17)
(D) Criminal Procedure Code, 1973, S.309--Adjournments--Grant of--Merely on the ground that the defence counsel had gone to attend hearing of some other case at different place, is not a special reason for cross-examination of the prosecution witnesses already examined-- As if the case in hand was not important and the court had to proceed as per the convenience of the counsel.
It is for the accused either to engage a counsel who is available when the evidence is being recorded or it is for the counsel to manage his diary--Merely on that account, grant of adjournment has been deprecated by Hon’ble the Supreme Court--The enunciation of law on that point should be kept in mind by the courts while dealing with the cases being tried for heinous crimes. (Para 27)
(E) Evidence Act, 1872--Hostile Witness--PW had the courage to state in his cross examination that whatever was stated by him in his examination-in-chief was not the correct version--He clearly stated that the occurrence did not take place in the manner as written in his statement and as deposed by him in the court in his examination-in-chief--These types of witnesses are required to be dealt with sternly--Once there is complete somersault in the two versions recorded in examination-in-chief and the cross-examination, one of them is certainly false--There are provisions in IPC to take care of such situation. (Para 31)
Mr. Rajesh Bindal, J.: - Reply of Shamsher Singh, Deputy Superintendent of Police (HQ), Fatehabad, on behalf of respondent no. 1 filed in court is taken on record.
2. One of the summoned prosecution witness has approached this court impugning the order dated 28.9.2011 passed by the learned court below whereby the application filed by him for recording his statement was rejected and an application filed by the Public Prosecutor for not examining the petitioner as one of the prosecution witness was accepted on the ground that he had been won over by the accused.
3. At the time of issuance of notice of motion on 3.11.2011, the following contentions of learned counsel for the petitioner were noticed:
“Learned counsel for the petitioner submitted that the application filed by the petitioner for examining him as prosecution witness has been wrongly rejected by the learned court below opining that the prosecution is the master of the case. The stand taken by the prosecution is that the petitioner has been won over by the accused. Learned counsel for the petitioner further submitted that the allegations against the petitioner are incorrect. In fact, he is to support the prosecution version as he is an eye witness to the occurrence.”
4. The brief facts of the case are that FIR No. 36 dated 10.2.2011 was registered on the complaint of Anil son of Jagdish, resident of Chandrawal, District Fatehabad, under Sections 323, 325, 302, 34 IPC at Police Station Bhuna, District Fatehabad, on account of death of Sonu sister-in-law of the complainant (wife of elder brother of the complainant). It is alleged in the FIR that Dharambir son of Hari Singh along with 3-4 other persons came in Toyota Innova and called father of the complainant to teach him a lesson, on account of his being a witness in a case against Hari Singh. The father of the complainant came out and asked Dharambir to behave properly, but he abused him. On hearing the noise, Sonu and other family members came out. Dharambir caught hold of Sonu and tried to put her in vehicle. Father of the complainant and Phul Singh tried to rescue her, however, Dharambir gave an iron rod blow on the head of Sonu. When the complainant tried to rescue her, Dharambir started his vehicle and put the same in the back gear and run over the father and sister-in-law of the complainant, driving the same at a high speed. Thereafter, all of them ran away from the spot.
5. Learned counsel for the petitioner submitted that number of witnesses were cited in the challan presented in the court. The petitioner was one of them being an independent eye witness. When the evidence of the prosecution started on 28.9.2011, the petitioner had also been summoned to appear as a witness. On that day the prosecution filed an application claiming that the petitioner be left out from the list of witnesses as he had been won over by the accused. The petitioner finding that the other witnesses had been won over by the accused, filed application praying that he being an eye witness, who has been summoned by the court, should be examined as prosecution witness. Both the applications were considered by the learned court below. The application of the petitioner was rejected and the application of the public prosecutor was accepted.
6. Learned counsel for the petitioner further submitted that on 28.9.2011, statements of PW1 Anil son of Jagdish Sharma and PW2 Jagdish Sharma son of Rameshwar were recorded in chief. Though the cross-examination of these witnesses should have been recorded on the same date, however, the same was deferred on the request of the accused claiming that the counsel, who had to cross-examine had gone to attend hearing of the case at Bhiwani. In their examination-in-chief on 28.9.2011, all the prosecution witnesses had fully supported the prosecution version. The case was adjourned to 9.11.2011. On that day cross-examination of PW1 and PW2 was conducted. During the course of their cross-examination, these
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