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IN THE SUPREME COURT OF INDIA
T.S. Thakur, Fakkir Mohamed Ibrahim Kalifulla, JJ.
Rajaram Prasad Yadav ….Appellant
VERSUS
State of Bihar & Anr. ….Respondent
CRIMINAL APPEAL NO. OF 2013 (@ SLP (CRL.) No.2400 of 2011)
Decided on : July 04, 2013
Facts of the Case :
Applications filed by Respondents under Section 311 to re-examine PW-9, informant was Dismissed by Trial Court herein in the instant case. However High Court directed trial Court to allow Respondent2 to examine himself as a witness on a specified date by its order.
B. Present appeal has been filed against said order of High Court.
Findings of the Court :
The Apex Court held that factors noted by trial Court and conclusion arrived at by it were all appropriate and just, while deciding the application filed under Section 311 Cr.P.C. No bonafides were found in the application of respondent2, while seeking the permission of the Court under Section 311 Cr.P.C. for his re-examination by merely alleging that on the earlier occasion he turned hostile under coercion and threat meted out to him at the instance of the appellant and other accused. Impugned order of High Court was set aside while that of trial Court was restored. Appeal was allowed.
Result : Appeal allowed
Key Points: - The Supreme Court held that the High Court's order directing the trial court to allow re-examination of a witness under Section 311 Cr.P.C. was set aside, and the trial court's order dismissing the application was restored (!) . - The Court found no bonafides in the application for re-examination, as the witness merely alleged coercion and threat without immediate substantiation (!) . - The trial court's observation of the witness's demeanor while tendering evidence was considered crucial in its decision to dismiss the application (!) . - The Court emphasized that the power under Section 311 Cr.P.C. is wide but must be exercised judiciously and with extreme care and caution to achieve a just decision (!) . - The primary object of Section 311 Cr.P.C. is to enable the court to discover all relevant facts and obtain proper proof to arrive at a just and correct decision (!) (!) . - The exercise of power under Section 311 Cr.P.C. should not be used to fill up lacunae in the prosecution or defense case, unless it results in serious prejudice to the accused (!) (!) . - The Court noted that the High Court passed its order without impleading the appellant and on the first hearing date, ignoring the trial court's detailed reasoning (!) . - The witness's earlier statement to the police was contradicted by his later deposition in court, where he claimed to have fallen into a latrine hole and sustained the injury, and that his sons were not present at the scene (!) (!) (!) . - The application for re-examination was filed approximately five months after the witness's examination, and the alleged coercion was not immediately reported (!) (!) . - The Court reiterated that the determinative factor for invoking Section 311 Cr.P.C. is whether the evidence is essential for the just decision of the case (!) (!) .
JUDGMENT
Fakkir Mohamed Ibrahim Kalifulla, J.
1. Leave granted.
2. This appeal is directed against the order of the High Court of Judicature at Patna, in Criminal Miscellaneous Petition No. 12454 of 2010, dated 9.12.2010.
3. By a short order dated 18.11.09, passed in Sessions Trial No. 425 of 2009, the trial Court disallowed the applications of the Respondents filed under Section 311 of the Code of Criminal Procedure (Cr.P.C.), to re- examine PW-9, the informant. The High Court directed the trial Court to allow the 2nd Respondent to examine himself as a witness on a specified date by its order dated 9.12.2010.
4. To narrate the brief facts, the 2nd Respondent (PW-9), herein filed a written complaint, alleging that on 07.07.1999, at about 5 p.m. in the evening, as regards the construction of a latrine in his land in front of his house, a dispute arose as between him and his brother Bindeshwar Yadav and that at the instance of his brother Bindeshwar Yadav, his son Rajaram Yadav, brought a country made pistol and fired at the 2nd respondent (PW-9) on the left side of the back, where after he was taken to the hospital for treatment.
5. At the instance of the second respondent, based on a complaint dated 8.7.1999, a case in Crime No. 71 of 1999 was registered in Khizersarai Police Station for the offences punishable under Sections 324, 307 read with Section 34 Indian Penal Code, 1860 and also under Section 27 of the Arms Act, 1959. Investigation was held and an injury report was brought on record, in which the doctor opined that the injury was caused by a hard blunt substance and was single in nature. It was stated that the second Respondent (PW-9) was able to secure another report later on.
6. The appellant was enlarged on bail on 13.10.1999. A charge sheet bearing No. 127 of 1999, dated 31.10.1999 was filed against the appellant and the other accused for the offences under Sections 324, 307 read with 34 of IPC. Significantly, there was no charge framed under Section 27 of the Arms Act. Cognizance was taken and the case was committed and after framing of the charges, the trial commenced. After the examination of the other witnesses, the 2nd Respondent was examined as PW-9 on 16.3.2007.
7. In his evidence, the 2nd Respondent (PW9), categorically stated that he never gave any statement to the police; that nobody beat him on the date of occurrence and that he was not hit by any bullet. He further stated in his evidence that he accidently fell into the hole of the latrine, while looking into it and that some instrument, which was lying inside the hole, caused the injury on his body. As far as the evidence of PW-4 and PW-5, namely, his sons, Babloo and Munna Kumar was concerned, the 2nd Respondent (PW9) stated that they were not present at the place of occurrence, since Babloo was staying in a hospital at Hulasganj and Munna Kumar was at Ranchi. The evidence of the prosecution was closed on 4.4.2007 and thereafter, the evidence of the defense side stated to have commenced.
8. In the meantime, it is stated that yet another altercation took place as between, the 2nd Respondent (PW9), his son Babloo on the one side and the appellant and his father on the other side, regarding the flowing of water from the latrine, constructed by the 2nd Respondent into the field of the father of the appellant.
9. Pursuant to the said issue, it is stated that the father of the appellant was beaten with bamboo sticks, injuring him seriously. In connection with the said incident, Bindeshwar Yadav filed a complaint before the police on 7.6.2007, leading to the registration of the FIR on the same date in Khizersarai Police Station in case No.78 of 2007. Subsequently, the second respondent came forward with a petition dated 24.8.2007, under Section 311 Cr.P.C. and sought for permission for his re- examination. For the same purpose, the Additional Public Prosecutor also filed a petition on 5.12.2007, in the above applications. The trial Court passed a common order
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