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2023 Supreme(Online)(GUJ) 1
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CRIMINAL APPLICATION NO. 368 of 2023 ========================================================== RANJITBHAI BUTTABHAI KO. PATEL Versus STATE OF GUJARAT ========================================================== Appearance:
JAY J JANI(9303) for the Applicant(s) No. 1,2,3,4 for the Respondent(s) No. 2 MS MOXA THAKKAR, APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA Date : 11/01/2023
The court has the power to recall any person as a witness if their evidence appears to be essential to the just decision of the case.
Headnote:
SECTION 311 CRPC - RECALLING OF VICTIM - FAIR TRIAL
Fact of the Case:
The applicants were charged with offences under Sections 363, 366 and 376 of IPC. During the trial, the victim complainant was examined and her evidence was recorded. Later, a supplementary chargesheet was filed against a co-accused, and the victim's evidence was recorded again. In her subsequent statement, the victim stated that she had not been raped and that her earlier statement was given under coercion. The applicants filed an application to recall the victim as she had given two contradictory statements.
Finding of the Court:
The court held that the trial court erred in rejecting the application to recall the victim. The court found that the victim's subsequent statement was contradictory to her earlier statement and that her re-examination was necessary for a just decision of the case.
Issues: Whether the trial court erred in rejecting the application to recall the victim.
Ratio Decidendi: The court relied on Section 311 of the CrPC, which empowers the court to recall any person as a witness if their evidence appears to be essential to the just decision of the case. The court found that the victim's subsequent statement was contradictory to her earlier statement and that her re-examination was necessary to determine the truth and render a just decision.
Final Decision: The court allowed the application and quashed the impugned order. The trial court was directed to fix one effective date for cross-examination of the victim complainant.
ORDER
Rule. Ms. Moxa Thakkar, ld. APP waives Rule for the respondent State.
2. This application is directed against the order dated 19.09.2022 passed below Exh:149 in Sessions Case No.2/2021, by the learned 7th Additional Sessions Judge, Ahmedabad Rural at Dholka, whereby, the application preferred by the applicants accused for recalling of victim has been rejected, mainly on the ground that as per the settled law, the accused cannot be permitted to fill-up the lacuna in the case.
3. The brief fact leading to file present application is that, the applicants and others are facing the charges for the offences under Section 363, 366 and 376 of IPC. Pursuant to the FIR, chargesheet came to be filed, which culminated into Sessions Case No.2/2021 (Old Case No. 144/2010). During the course of trial, victim complainant was examined at Exh:38 and her evidence was recorded on 08.01.2013. The co-accused Kalubhai Prabhubhai, shown as absconding was later on arrested and supplementary chargesheet against him came to be filed which culminated into Sessions Case No. 52/2016. In the supplementary chargesheet, the evidence of the victim was recorded at Exh:33, wherein, she has stated on oath that, she has not been raped by anyone and incident of such kind is never ever happened. She has further stated that, under coercion, earlier she has deposed against the present applicants herein.
4. Considering the subsequent evidence of the victim, the present applicants accused moved an application at Exh:149, to recall the victim as she has given two different contradictory and diversant evidence in respect of alleged incident and therefore, reexamination of the victim for the fair trial is necessary.
5. Learned trial Court after hearing the parties, came to a conclusion that the evidence of the victim recorded in the year 2012-13, and sufficient opportunity was being afforded to the accused and accordingly, cross-examination was done by the defense side. The learned Trial Court further observed that the application is filed at a belated stage when most of the prosecution witnesses have been examined by the prosecution. The Court has further observed that, the witness has been win over by the defense and to record favourable statement, the application under Section 311 of the Cr.P.C is filed, which cannot be permitted in the eye of law. Accordingly, after recording the aforesaid reasons, the learned Trial Court has rejected the application.
6. Being dissatisfied with the order of the trial Court, the original accused have preferred the instant application.
7. Mr. J.J.Jani, learned counsel for the applicants would submit that, in the case of the applicants, the victim vide Exh:38, had alleged that, the accused abducted her and she was raped by the accused Ranjit. Mr. Jani drew attention of this Court to the deposition of the victim at Exh:23 recorded in the case of co- accused against whom supplementary chargesheet is filed, to submit that, the victim has changed her version with regard to complicity of accused and her earlier deposition.
8. In the aforesaid facts, Mr. Jani would submit that, still prosecution evidence is not completed. Both the cases are pending before the trial Court. Thus, he would urge that Section 311 of Cr.P.C. empowers the Court to summon any person as a witness or examine any person in attendance though not summoned as a witnesses or recall and reexamine any person already examined and the Court shall summon and examine or recall and reexamine any such person if his/her evidence appears to it to be essential to the just decision of the case. Learned counsel Mr. Jani would submit that, it is obligatory on the part of the trial Court to determine the truth and to render a just decision, best available evidence must be brought before the Court to
