The court has the discretionary power under Section 311 Cr.P.C. to recall and re-examine witnesses to prevent failure of justice.

JUDGMENT

Karamjit Singh, J. - The present petition has been filed by the petitioner against the order dated 9.11.2021 passed by the Court of Ld. Additional Sessions Judge, Fatehabad, whereby the application moved by the petitioner/complainant under Section 311 Cr.P.C. for recalling PW-11 ASI Phool Singh, in order to get him declare hostile and thereafter to get him cross-examined by the prosecution in criminal case having FIR No.236 dated 12.5.2019 under Section 302 and 392 IPC read with Section 34 IPC Police Station City Tohana District Fatehabad was dismissed. The brief facts of the case are that the aforesaid FIR was registered on the basis of the statement of petitioner/complainant Dinesh Kumar relating to murder of Joginder @ Bittu, whose dead body was found lying in the basement of the showroom of petitioner/complainant. The said FIR was registered against unknown persons, who committed murder of Joginder @ Bittu. During investigation, respondents No.2 and 3 namely Gurvinder @ Dariya and Lakhbir @ ) Lakha were arrested and after completion of investigation, the police presented challan against both of them. After commitment of the case, the charges were framed and during trial prosecution examined number of witnesses including PW- 11 ASI Phool Singh and his statement was recorded on 7.4.2021. Thereafter petitioner/complainant filed an application on the same very day under Section 311 Cr.P.C. for recalling the aforesaid PW and to get him declared hostile and then to cross-examine him on behalf of the prosecution.

2. The aforesaid application was contested by the defence and reply was filed. After hearing the counsel for both the parties the learned trial Court dismissed the said application vide impugned order dated 9.11.2021.

3. Being not satisfied, the present petition has been filed by the petitioner/ complainant.

4. The present petition is contested by the respondents No.2 and 3. I have heard the counsel for the parties.

5. The counsel for the petitioner submitted that PW-11 ASI Phool Singh was member of the police party headed by the investigating officer and they inspected the place of occurrence and during the said spot inspection blood lying at the spot was lifted and converted into sealed parcel, which was taken into possession by the police vide separate memo and the same was attested by PW-11 ASI Phool Singh and HC Rajesh Kumar. The counsel for the petitioner further submitted that the statement of the said PW under Section 161 Cr.P.C. was recorded by the investigating officer and the copy of the same is Annexure P-3.

6. The counsel for the petitioner further submitted that the aforesaid spot inspection was conducted by the team lead by the investigating officer after the information regarding the murder was received by the police at about 5:50 am on 22.5.2019.

7. The counsel for the petitioner further submitted that however PW-11 ASI Phool Singh while appearing in the witness box, in his cross-examination stated that the said spot inspection was conducted at about 1:00 am in the midnight and blood stains were lifted at 2/2:30 a.m on that day. The counsel for the petitioner further submitted that the deposition of PW-11 ASI Phool Singh to the extent of aforesaid timing is factually wrong. The counsel for the petitioner further submitted that at the time of recording of aforesaid statement of PW-11, the Public Prosecutor, who was conducting trial on behalf of the State did not make any request to declare the witness as hostile and as such after the completion of the recording of the evidence of PW-11, the application in question was moved by the petitioner/complainant under Section 311 Cr.P.C. on the same very day. The counsel for the petitioner further submitted that same was declined by the trial Court vide impugned order without appreciating the facts and circumstances of the case. The counsel for the petitioner further submitted that the trial Court is having vast powers under Section 311 Cr.P.C. to recall any wit