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2020 Supreme(Telangana) 846
IN THE HIGH COURT FOR STATE OF TELANGANA
KUNURU LAKSHMAN, J.
Y. Ramesh – Appellant
Versus
State of Telangana and Others – Respondents
Criminal Petition Nos. 828, 945 of 2020
Decided On : 09-11-2020
Advocate Appeared:
For the Appellants : M. Radha Krishna, Pushadapu Subba Rao.
Point of Law : Power of the Court- If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person
Headnote:
Indian Penal Code 1860 - Section 302,498A,324,307,34, - Code of Criminal Procedure 1973 – Section 164,540,161,482,311 - Jammu and Kashmir State Ranbir Penal Code, 1989 - Sections 376, 452 ,323 – Indian Evidence Act 1872 – Section 60,64,91,138 - Murder – Cruelty – Common Intention - Oral evidence - Whether the Court is right in thinking that the new evidence is needed by it?- Whether the Court is right in thinking that the new evidence is needed by it?-Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
Held : - After the lapse of six months, the very same witness cannot be recalled under Section 311 of Cr.P.C. to give further evidence by way of re examination retracting her statement under Section 164 of Cr.P.C. - The exercise of widest discretionary power under Section 311 Cr.P.C. should ensure that judgment should not be rendered on inchoate, inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated - The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision. Appeal to against the Order
Finding of the Court : Prosecution having exhausted opportunity afforded for it for examination of its witnesses, at fag end of trial it has filed a petition under Section 311 of Cr.P.C. for examination of four witnesses as additional evidence to prove the entrustment of the provisions with the respondents - It would be argued on the part of petitioner- Prosecution that four witnesses sought to be examined as additional evidence are authors of the records which have to be proved before Court and it should be done only through them and these witnesses are material witnesses - In view of above stated authoritative pronouncements on legal principle, coming to the case on hand, admittedly, daughter of PW-3 and accused, was not referred to anywhere or at any stage including in complaint, charge sheet and also statements recorded by the police under Section 161 Cr.P.C. At the cost of repetition, it is trite to note that even PW-3, and wife of petitioner - accused, did not speak about the presence of her daughter in her earlier statement - Only ground mentioned in the petition. by the prosecution is that, Ms. Y. Pavani, was an eye-witness and she was unable to depose earlier and police unable to record her statement since she was staying in the Hostel and she was under threat of accused. But, PW-3, mother of Ms. Y. Pavani, did not lodge any complaint with the police with regard to alleged threat. She did not even bring said fact to notice of trial Court The said application was filed after the lapse of six months - Impugned orders, respectively are hereby quashed.
Result : Criminal Petition allowed
ORDER :
1. Mr. Y. Ramesh, sole accused in S.C. No. 12 of 2014 on the file of the XIII Additional District and Sessions Judge-cum-XIII Additional Metropolitan Sessions Judge, Ranga Reddy District, Cyberabad at L.B. Nagar, has filed Crl. Pet. No. 828 of 2020 under Section 482 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) to quash the order dated 16.12.2019 passed in Crl. M.P. No. 154 of 2019 in S.C. No. 12 of 2014 filed under Section 311 of Cr.P.C. to recall PW-3 for re examination. Whereas, Crl. Pet. No. 945 of 2020 is filed by the very same accused under Section 482 of Cr.P.C. to quash the order dated 16.12.2019 passed in Crl. M.P. No. 153 of 2019 in S.C. No. 12 of 2014 filed under Section 311 of Cr.P.C. to summon Ms. Y. Pavani for examination.
2. Heard Mr. M. Radha Krishna, learned counsel representing Mr. Pushadapu Subba Rao, learned counsel for the petitioner in both petitions, and learned Public Prosecutor appearing on behalf of respondent No. 1 State. Despite service of notice, none appears for respondent No. 2. Perused the entire material available on record.
3. The petitioner herein is the sole accused in S.C. 12 of 2014. The offence alleged against him is under Section 302 of IPC. The wife of petitioner-accused deposed herself as PW-3 and turned hostile, addressed a letter on 24.09.2019 to the Public Prosecutor stating that on the date of her examination, she was threatened by the accused that he would kill her children, who were studying by staying in the Hostel and, therefore, she could not support the case of prosecution. Since her children are staying with her now, she wants to give further evidence. Basing on the said letter, the prosecution has filed a petition under Section 311 of Cr.P.C. vide Crl. M.P. No. 154 of 2019 to recall her for further examination. The prosecution has also filed another application vide Crl. M.P. No. 153 of 2019 to summon PW-3's daughter, Y. Pavani, for her examination stating that daughter of PW-3 is an eye-witness to the incident and, therefore, her evidence is very much important and crucial to the case of prosecution.
4. The present petitioner being sole accused opposed the said petitions on the grounds that the prosecution filed the said petitions with an intention to protract the proceedings and to get the evidence in its favour and in the event the petitions are allowed, much prejudice would be caused to him.
5. The trial Court, after hearing both sides, allowed the said two petitions vide order dated 16.12.2019 in Crl. Pet. Nos. 153 and 154 of 2019.
6. Aggrieved by the said orders, the sole accused preferred the present petitions to quash the said orders.
7. Since the parties are one and the same and facts of the case arise out of the very same crime, both the Criminal Petitions are being disposed of by way of a common order.
8. As far as Crl. Pet. No. 828 of 2020 is concerned, Mr. M. Radha Krishna, learned counsel for the petitioner, would submit that Crl. M.P. No. 154 of 2019 filed under Section 311 of Cr.P.C. is not maintainable as the prosecution has failed to produce any document and filed the said petition at the stage of hearing. But, the trial Court allowed the application without appreciating the fact that PW-3 turned hostile, cross-examined by the Public Prosecutor and without there being any sufficient cause for filing said application after the lapse of six months. Therefore, according to the learned counsel for the petitioner, the impugned order is erroneous in law and, accordingly, he sought to quash the same. In support of his contentions, the learned counsel for the petitioner has placed reliance on the decision rendered by the High Court of Jammu and Kashmir at Jammu in Masoom Hussain Shah vs. State, 2018 (0) Supreme (J&K) 631 and the principle held by the Hon'ble Supreme Court in Rajaram Prasad Yadav vs. State of Bihar, (2013) 14 SCC 461.
9. As far as Crl. Pet. No. 945 of 2020 is concerned, the learned counsel for the petitioner would submit that the daugh
