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2019 Supreme(P&H) 535
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Rajbir Sehrawat
CRM-M-38052 of 2013 (O&M)
Bhupinder Kaur v. State of Punjab & Ors
{Decided on 16/01/2019}
Mr. Rajat Bansal, AAG, Punjab for respondent No.1-State.
Mr. Lovekirat S. Chahal, Advocate for respondents No.2 and 3.
Recalling of Witness – Merely because the case of a party is not covered under Section 138 of Evidence Act, would not be any ground to debar such a party or witness to move an application under Section 311 Cr.P.C
Re-examination of Witness – Scope of – Section 138 of Evidence Act can be freely used by the witness or party for re-examination irrespective of the permission of the Court, subject to the scope of reexamination prescribed by this Section
Re-examination of Witness – Filling up the lacuna – Application under Section 311 Cr.P.C. cannot be declined by the trial Court even if the same is, allegedly, intended to fill-up the lacuna left in the case of the prosecution
Headnote:(A) Evidence Act, 1872, S.138 – Re-examination of Witness – Recalling of Witness – Merely because the case of a party is not covered under Section 138 of Evidence Act, would not be any ground to debar such a party or witness to move an application under Section 311 Cr.P.C. – There is absolutely no over-lapping between the two sections – The provision of Section 311 Cr.P.C. is independent and irrespective of Section 138 of the Indian Evidence Act – Criminal Procedure Code, 1973, S.311. (Para 21)
(B) Criminal Procedure Code, 1973, S.311 – Re-examination of Witness – Application filed u/s 311 Cr.P.C not to be dismissed merely on the ground that the case of the petitioner is not covered under section 138 of Evidence Act – Evidence Act, 1872, S.138. (Para 23)
(C) Evidence Act, 1872, S.138 – Re-examination of Witness – Scope of – Section 138 of Evidence Act can be freely used by the witness or party for re-examination irrespective of the permission of the Court, subject to the scope of reexamination prescribed by this Section.
A perusal of the above provisions makes it clear that the provision of Section 138 of the Indian Evidence Act is to be pressed into service on mere desire of the witness or a party who is examining the witness. This section is only a rule of evidence and defines the order of examination of witness. This Section, however, provides that in case of such re-examination, the same shall be restricted to the additional question which have arisen during the cross examination of the witness. Still further, the section provides that if a witness is re-examined then such a witness can be cross-examined by the other side, however, that can be done only if new matter is introduced in re-examination with the permission of the Court. Therefore, this shows that Section 138 has a well-defined scope as to when it is to be invoked, and is bounded by parameters specified therein. (Para 19)
(D) Criminal Procedure Code, 1973, S.311 – Re-examination of Witness – Scope of – Section 311 Cr.P.C. is a rule of procedure of trial by a Court and is relating to the discretion of and duty cast upon the Court – This Section does not give any right; as such; to any party to move the Court for calling or recalling of a witness for examination or reexamination – However, this section gives ample powers to the Trial Court that it can call any person as a witness, whether in the attendance of the Court or not – The Court can examine and re-examine any witness as it deems fit – But, this Section further casts a duty upon the trial Court that if such evidence appears to be essential for the just decision of the case then the trial Court shall be duty bound to call such person to appear as a witness in examination or re-examination, as the case may be. (Para 20)
(E) Indian Penal Code, 1860, S.302 & S.120-B – Murder – Criminal Conspiracy – Re-examination of Witness – Mere fact that in the first instance, the part of conspiracy was omitted while disposing in examination in-chief; cannot be a reason or criteria for declining an application moved under Section 311 Cr.P.C. – The ultimate test which the trial Court was required to apply was whether the statement, which the petitioner now wants to make, is necessary for just decision of the case or not – Criminal Procedure Code, 1973, S.311. (Para 26)
(F) Criminal Procedure Code, 1973, S.311 – Re-examination of Witness – Filling up the lacuna – The application under Section 311 Cr.P.C. cannot be declined by the trial Court even if the same is, allegedly, intended to fill-up the lacuna left in the case of the prosecution – Any supposed lacuna, which is pleaded by the defense, and which is, allegedly, sought to be filled-up by the witness is totally irrelevant for the purpose of power to be exercised under Section 311 Cr.P.C. The trial Court is primarily concerned with arriving at the truth about the facts in issue. – Therefore, the parameters for exercising powers under Section 311 Cr.P.C. are well defined; that it may be exercised in a case where it appears to Court to be necessary in the interest of justice and this power is bound to be exercised by the Court when the same is necessary for the just decision of the case. (Para 26)
Mr. Rajbir Sehrawat, J. (Oral) - Prayer in the petition is for setting aside the order dated 18.09.2013 passed by the Additional Sessions Judge, SAS Nagar, Mohali (Annexure P-5); vide which the application under Section 311 Cr.P.C. filed by the petitioner seeking her re-examination as a witness in the trial in case FIR No.37 dated 13.07.2010 under Sections 365/120-B of IPC (Section 364 IPC added later on) at Police Station Phase XI, SAS Nagar, Mohali (Annexure P-1), has been dismissed.
2. The facts leading to the filing of the present petition are that the petitioner herein is a widow, who had only son, namely, Gurdeep Singh. The son of the petitioner was married to the daughter of the accused-Jagbir Singh on 13.11.2008. The accused-Jagbir Singh was serving as Sub Inspector in the Punjab Police and was posted at CIA, Mohali. However, as the facts unfold, the matrimonial aspect between the son of the petitioner and the daughter of the accused-Jagbir Singh did not go well. Therefore, the accused-Jagbir Singh himself got lodged an FIR on 29.05.2009; involving the present petitioner and her son; with the alleged offences under Sections 343, 323, 506, 406, 420, 34 of IPC and Section 25 of Arms Act, at Police Station Phase-VIII, Mohali. However, the matter did not stop there. Another FIR was got lodged on 02.06.2009 by Ranjit Kaur, the wife of the accused-Jagbir Singh.
3. Feeling pressurized because of these FIRs, the petitioner and her son had entered into a settlement with the accused-Jagbir Singh and his wife so that the FIRs could be got quashed. The interesting condition imposed for settlement of the FIRs was that son of the petitioner, namely, Gurdeep Singh would leave his widowed mother and would start living with the accused along with his wife, besides paying the other miscellaneous expenses for settling the FIRs. As a result, the son of the petitioner started living with the family of the accused-Jagbir Singh and the FIRs were got quashed through petitions filed on the basis of the compromise.
4. However, on 03.07.2010, the son of the petitioner came to meet her and he had informed the petitioner that he was feeling distressed because he had a quarrel with his wife and mother-in-law, the previous night. But on 04.07.2010, son of the petitioner left the house of the petitioner/complainant. Thereafter, he did not return to the petitioner. She had made several calls to her son on his mobile phones. At about 1.00 p.m., on 04.07.2010, he said that he would come to meet the petitioner. However, thereafter, he stopped picking up the calls. After 8.00 p.m., on the same day, the mobile phone of the son of the petitioner was ‘not reachable’.
5. Thereafter, the petitioner started searching for her son. However, she could not get any clue about where about of her son. Hence, she approached the police on 06.07.2010 and lodged a missing report. The police registered a DDR on the statement of the petitioner, in which she had stated that her son had gone missing and she does not have any clue regarding whereabouts her son. Also, she stated that she does not have any suspicion against anybody.
6. Later on, one Satnam Singh met the petitioner and informed her that on 04.07.2010 itself, he happened to have met the son of the petitioner. He was in apparent hurry. When Satnam Singh questioned the son of the petitioner as to why he was in hurry, the later informed that he had been called by his father-in-law. Thereafter, son of the petitioner went, supposedly, to his father-in-law. Accordingly, the petitioner contacted the father-in-law his son, namely, the accused-Jagbir Singh. However, no satisfactory reply was given by him. This lead the petitioner to approach the police again to make a statement describing all these happenings. In addition to these facts, the petitioner also disclosed to the police that; in the meantime on 03.07.2010 itself, the wife of the son of the petitioner, namely, Jaspreet Kaur had left for USA. It was also d
