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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.         OF 2013 (@ SLP (CRL.) No.2400 of 2011)

Rajaram Prasad Yadav    ….Appellant

VERSUS

State of Bihar & Anr.    ….Respondent J U D G M E N T

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  

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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,  whereafter  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  

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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  Criminal Appeal No.         of 2013 (@ SLP (Crl.) No.2400 of 2011)   3 of 25

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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  on  

18.11.2009, dismissing both the applications and posted the case  

for  evidence  of  investigation  officers  and  the  doctors  on  

18.12.2009. The second respondent approached the High Court  

by filing the present Criminal Misc. Case No.12454/2010, in which  

the impugned order was passed by the High Court on 9.12.2010.  

10. We heard Mr.  Mohit  Kumar Shah, learned counsel  for the  

appellant  and  Mr.  Gopal  Singh,  learned  counsel  for  the  first  Criminal Appeal No.         of 2013 (@ SLP (Crl.) No.2400 of 2011)   4 of 25

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respondent and Mr. Amlan Kumar Ghosh, learned counsel for the  

second respondent.   We also perused the order impugned,  as  

well  as  the order  of  the trial  Court  and other  material  papers  

placed on record.   

11. Mr. Mohit Kumar Shah, learned counsel for the appellant in  

his  submission  contended  that  while  the  trial  Court  passed  a  

reasoned  order  after  hearing  both  parties  extensively,  the  

Hon’ble High Court passed the impugned order in the absence of  

the  appellant.   According  to  the  learned  counsel,  the  second  

respondent  even  without  impleading  the  appellant,  persuaded  

the High Court to pass the impugned order, which according to  

the learned counsel  is on the face of it,  not sustainable under  

Section 311 Cr.P.C.  Learned counsel further contended that by  

permitting  the  second respondent  to  get  himself  re-examined,  

every attempt has been made to fill up the lacunae in the case of  

the  prosecution,  which  the  High  Court  ought  not  to  have  

permitted.  According to the learned counsel, when the trial Court  

had examined the pros and cons, while dealing with the prayer of  

the second respondent,  as  well  as  the first  respondent for  re-

examination  of  the  second  respondent  and  gave  well-founded  

reasons for rejecting the applications, the High Court ought not to  

have  interfered  with  the  same  by  passing  a  cryptic  order.  

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Learned  counsel  further  contended that  the  application,  which  

came to be allowed by the High Court was vexatious and would  

only encourage the malicious designs of the second respondent  

to  get  over  his  own earlier  version deposed before the Court,  

which fully supported the case of the appellant.   

12. As against the above submissions, learned counsel for the  

respondents contended that as enormous powers are vested in  

the Court under Section 311 Cr.P.C., in the matter of examination  

or  re-examination  of  a  witness  in  order  to  arrive  at  a  just  

conclusion  and  the  High  Court  having  exercised  its  powers  in  

pursuance of the said power, the order of the High Court does not  

call for interference.   

13. Having heard the learned counsel for the respective parties  

and  having  bestowed  our  serious  consideration  to  the  issue  

involved, we find force in the submission of the counsel for the  

appellant, as the same merits acceptance.  In order to appreciate  

the stand of the appellant it will be worthwhile to refer to Section  

311 Cr.P.C.,  as  well  as  Section 138 of  the Evidence Act.   The  

same are extracted hereunder:

Section 311, Code of Criminal Procedure  

311. Power  to  summon  material  witness,  or  examine person present:  Any  Court  may,  at  any  

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stage of any inquiry, trial or other proceeding under   this  Code,  summon  any  person  as  a  witness,  or   examine  any  person  in  attendance,  though  not   summoned as a witness, or recall and re-examine any   person  already  examined;  and  the  Court  shall   summon and examine or recall  and re-examine any  such  person  if  his  evidence  appears  to  it  to  be  essential to the just decision of the case.

Section 138, Evidence Act 138. Order of examinations- witnesses shall be first   examined-in-chief,  then  (if  the  adverse  party  so   desires) cross-examined, then (if the party calling him  so desires) re-examined.

The  examination  and  cross-examination  must   relate  to  relevant  facts,  but  the  cross-examination  need not be confined to the facts to which the witness   testified on his examination-in-chief.

Direction  of  re-examination-  The  re-examination  shall  be  directed  to  the  explanation  of  matters   referred to in cross-examination; and, if new matter is,   by  permission  of  the  Court,  introduced  in  re- examination,  the  adverse  party  may  further  cross- examine upon that matter.”

14. A conspicuous reading of Section 311 Cr.P.C.  would show  

that widest of the powers have been invested with the Courts  

when it  comes to  the question of  summoning a witness  or  to  

recall or re-examine any witness already examined.  A reading of  

the provision shows that the expression “any” has been used as a  

pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person   

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as a witness”, “person in attendance though not summoned as a   

witness”,  and “person  already  examined”.   By  using  the  said  

expression  “any” as  a  pre-fix  to  the  various  expressions  

mentioned above, it is ultimately stated that all that was required  

to be satisfied by the Court was only in relation to such evidence  

that appears to the Court to be essential for the just decision of  

the case.  Section 138 of the Evidence Act, prescribed the order  

of examination of a witness in the Court.  Order of re-examination  

is also prescribed calling for such a witness so desired for such  

re-examination. Therefore, a reading of Section 311 Cr.P.C. and  

Section 138 Evidence Act, insofar as it comes to the question of a  

criminal  trial,  the order of  re-examination at the desire of  any  

person  under  Section  138,  will  have  to  necessarily  be  in  

consonance with the prescription contained in Section 311 Cr.P.C.  

It  is,  therefore,  imperative  that  the  invocation  of  Section  311  

Cr.P.C. and its application in a particular case can be ordered by  

the Court, only by bearing in mind the object and purport of the  

said provision, namely, for achieving a just decision of the case  

as  noted  by  us  earlier.   The  power  vested  under  the  said  

provision  is  made available  to  any  Court  at  any  stage  in  any  

inquiry or trial or other proceeding initiated under the Code for  

the  purpose  of  summoning  any  person  as  a  witness  or  for  

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examining any person in attendance, even though not summoned  

as  witness  or  to  recall  or  re-examine  any  person  already  

examined. Insofar as recalling and re-examination of any person  

already  examined,  the  Court  must  necessarily  consider  and  

ensure  that  such  recall  and  re-examination  of  any  person,  

appears  in  the  view  of  the  Court  to  be  essential  for  the  just  

decision of  the case.  Therefore,  the paramount  requirement  is  

just decision and for that purpose the essentiality of a person to  

be  recalled  and  re-examined  has  to  be  ascertained.  To  put  it  

differently, while such a widest power is invested with the Court,  

it  is  needless  to  state  that  exercise  of  such  power  should  be  

made judicially and also with extreme care and caution.

15. In this context, we also wish to make a reference to certain  

decisions rendered by this Court on the interpretation of Section  

311  Cr.P.C.  where,  this  Court  highlighted  as  to  the  basic  

principles which are to be borne in mind, while dealing with an  

application under Section 311 Cr.P.C. In the decision reported in  

Jamatraj Kewalji Govani vs. State of Maharashtra - AIR 1968  

SC 178, this Court held as under in paragraph 14:-

“14. It would appear that in our criminal jurisdiction,   statutory law confers a power in absolute terms to be  exercised  at  any  stage  of  the  trial  to  summon  a  witness or examine one present in court or to recall a   witness already examined, and makes this the duty  

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and  obligation  of  the  Court  provided  the  just  decision of the case demands it. In other words,  where the court exercises the power under the second  part, the inquiry cannot be whether the accused has   brought  anything  suddenly  or  unexpectedly  but   whether  the  court  is  right  in  thinking  that  the  new  evidence  is  needed  by  it  for  a  just  decision  of  the   case.  If  the  court  has  acted  without  the  requirements  of  a  just  decision,  the  action  is  open  to  criticism  but  if  the  court's  action  is   supportable as being in aid of  a  just  decision  the action cannot be regarded as exceeding the  jurisdiction.”  

(Emphasis added)

16. In  the  decision  reported  in  Mohanlal  Shamji  Soni  vs.  

Union of  India and another  -  1991 Suppl.(1)  SCC 271,  this  

Court  again  highlighted  the  importance  of  the  power  to  be  

exercised under Section 311 Cr.P.C. as under in paragraph 10:-

“10….In order to enable the court to find out the truth   and render a just decision, the salutary provisions of   Section  540  of  the  Code  (Section  311  of  the  new  Code)  are  enacted  whereunder  any  court  by  exercising its discretionary authority at any stage of   enquiry,  trial  or  other  proceeding  can  summon any  person  as  a  witness  or  examine  any  person  in   attendance  though  not  summoned  as  a  witness  or   recall or re-examine any person in attendance though  not summoned as a witness or recall and re-examine   any person already examined who are expected to be  able  to  throw  light  upon  the  matter  in  dispute;   because  if  judgments  happen  to  be  rendered  on  inchoate, inconclusive and speculative presentation of   facts, the ends of justice would be defeated.”

17. In the decision in Raj Deo Sharma (II) vs. State of Bihar  

- 1999 (7) SCC 604, the proposition has been reiterated as under  

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in paragraph 9:-

“9. We may observe that the power of the court as   envisaged  in  Section  311  of  the  Code  of  Criminal   Procedure  has  not  been  curtailed  by  this  Court.   Neither in the decision of the five-Judge Bench in A.R.  Antulay case nor in Kartar Singh case such power has  been  restricted  for  achieving  speedy  trial.  In  other   words, even if the prosecution evidence is closed in   compliance with the directions contained in the main   judgment it is still open to the prosecution to invoke   the  powers  of  the  court  under  Section  311  of  the  Code.  We make it clear that if evidence of any  witness appears to the court to be essential to  the just decision of the case it is the duty of the  court  to  summon  and  examine  or  recall  and  re- examine any such person.”  

(Emphasis added)

18. In  U.T.  of  Dadra  and  Nagar  Haveli  and  Anr.  vs.  

Fatehsinh  Mohansinh  Chauhan  -  2006  (7)  SCC  529,  the  

decision has been further elucidated as under in paragraph 15:-

“15. A  conspectus  of  authorities  referred  to  above  would show that the principle  is well  settled that  the exercise of power under Section 311 CrPC  should be resorted  to  only  with the object  of   finding out the truth or obtaining proper proof   of such facts which lead to a just and correct   decision of the case, this being the primary duty of   a criminal court. Calling a witness or re-examining a   witness already examined for the purpose of  finding  out  the  truth  in  order  to  enable  the court  to   arrive at a just decision of the case cannot be   dubbed as “filling in a lacuna in the prosecution  case” unless the facts and circumstances of the case   make it  apparent that the exercise of power by the  court would result in causing serious prejudice to the   accused resulting in miscarriage of justice.”  

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(Emphasis added)

19. In Iddar & Ors. vs. Aabida & Anr. - AIR 2007 SC 3029, the  

object underlying under Section 311 Cr.P.C., has been stated as  

under in paragraph 11:-

“11. The object underlying Section 311 of the Code is   that there may not be failure of justice on account of   mistake  of  either  party  in  bringing  the  valuable   evidence  on  record  or  leaving  ambiguity  in  the   statements  of  the  witnesses  examined  from  either   side.  The determinative factor  is  whether  it  is  essential  to the just  decision of  the case. The  section  is  not  limited  only  for  the  benefit  of  the   accused, and it will not be an improper exercise of the   powers of the court to summon a witness under the   section  merely  because  the  evidence  supports  the  case for the prosecution and not that of the accused.   The section is a general section which applies to all   proceedings, enquiries and trials under the Code and   empowers  Magistrate  to  issue  summons  to  any   witness  at  any  stage  of  such  proceedings,  trial  or   enquiry. In Section 311 the significant expression that   occurs  is  ‘at  any  stage  of  inquiry  or  trial  or  other   proceeding under this Code’.  It is, however, to be  borne in mind that whereas the section confers  a very wide power on the court on summoning  witnesses,  the  discretion  conferred  is  to  be  exercised  judiciously,  as  the  wider  the  power  the greater  is  the necessity  for application of   judicial mind.”

(Emphasis added)

20. In P. Sanjeeva Rao vs. State of A.P.- AIR 2012 SC 2242,  

the scope of Section 311 Cr.P.C. has been highlighted by making  

reference  to  an  earlier  decision  of  this  Court  and  also  with  

particular  reference  to  the  case,  which  was  dealt  with  in  that  

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decision in paragraphs 13 and 16, which are as under:-

“13. Grant  of  fairest  opportunity  to  the  accused  to   prove his innocence was the object of every fair trial,   observed this Court in  Hoffman Andreas v.  Inspector  of  Customs,  Amritsar  (2000)  10  SCC  430.  The  following passage is in this regard apposite:  

“In such circumstances, if the new counsel thought to  have  the  material  witnesses  further  examined,  the  Court could adopt latitude and a liberal view in   the  interest  of  justice,  particularly  when  the  court  has  unbridled  powers  in  the  matter  as  enshrined in Section 311 of the Code. After all   the trial is basically for the prisoners and courts  should  afford  the  opportunity  to  them in  the  fairest manner possible.”

16. We are  conscious  of  the fact  that  recall  of  the   witnesses  is  being  directed  nearly  four  years  after   they were examined-in-chief about an incident that is   nearly seven years old. Delay takes a heavy toll on the   human memory apart from breeding cynicism about   the  efficacy  of  the  judicial  system  to  decide  cases   within a reasonably foreseeable time period. To that   extent the apprehension expressed by Mr. Rawal, that   the prosecution may suffer prejudice on account of a   belated recall, may not be wholly without any basis.   Having said that, we are of the opinion that on a parity   of  reasoning  and  looking  to  the  consequences  of   denial of opportunity to cross-examine the witnesses,   we  would  prefer  to  err  in  favour  of  the  appellant   getting  an  opportunity  rather  than  protecting  the   prosecution against a possible prejudice at his  cost.   Fairness of the trial is a virtue that is sacrosanct   in our judicial system and no price is too heavy   to protect  that  virtue.  A possible prejudice to   prosecution is not even a price, leave alone one  that would justify denial of a fair opportunity to   the accused to defend himself.”  

(Emphasis added)

21. In a recent decision of this Court in  Sheikh Jumman vs.  Criminal Appeal No.         of 2013 (@ SLP (Crl.) No.2400 of 2011)   13 of 25

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State of Maharashtra - (2012) 9 SCALE 80, the above referred  

to decisions were followed.

22. Again  in  an  unreported  decision  rendered  by  this  Court  

dated 08.05.2013 in Natasha Singh vs. CBI (State) – Criminal  

Appeal No.709 of  2013, where one of  us was a party, various  

other decisions of this Court were referred to and the position has  

been stated as under in paragraphs 14 and 15:

“14. The  scope  and  object  of  the  provision  is  to   enable the Court to determine the truth and to render   a just decision after discovering all relevant facts and   obtaining proper proof of such facts, to arrive at a just   decision  of  the  case.  Power  must  be  exercised  judiciously and not capriciously or arbitrarily, as any   improper  or  capricious  exercise  of  such power  may  lead  to  undesirable  results.   An  application  under   Section 311 Cr.P.C. must not be allowed only to fill up   a  lacuna  in  the  case  of  the  prosecution,  or  of  the   defence, or to the disadvantage of the accused, or to   cause serious prejudice to the defence of the accused,   or to give an unfair advantage to the opposite party.   Further the additional evidence must not be received  as a disguise for retrial, or to change the nature of the   case against either of the parties. Such a power must   be exercised, provided that the evidence that is likely   to be tendered by a witness, is germane to the issue   involved.  An opportunity of rebuttal, however, must   be given to the other party.

The power conferred under Section 311 Cr.P.C.   must, therefore, be invoked by the Court only in order   to  meet  the  ends  of  justice,  for  strong  and  valid   reasons, and the same must be exercised with great   caution and circumspection.

The very use of words such as ‘any Court’,  ‘at   any  stage’,  or  ‘or  any  enquiry’,  trial  or  other   

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proceedings’,  ‘any  person’  and  ‘any  such  person’   clearly  spells  out  that  the provisions  of  this  section   have  been  expressed  in  the  widest  possible  terms,   and do not limit the discretion of the Court in any way.   There is thus no escape if  the fresh evidence to be   obtained is essential to the just decision of the case.   The  determinative  factor  should,  therefore,  be   whether the summoning/recalling of the said witness   is in fact, essential to the just decision of the case.

15. Fair trial is the main object of criminal procedure,   and it  is  the duty  of  the court  to  ensure that  such   fairness is not hampered or threatened in any manner.   Fair  trial  entails  the  interests  of  the  accused,  the   victim  and  of  the  society,  and  therefore,  fair  trial   includes the grant of fair and proper opportunities to   the person concerned, and the same must be ensured   as this is a constitutional, as well as a human right.   Thus, under no circumstances can a person’s right to   fair trial be jeopardized. Adducing evidence in support   of the defence is a valuable right.  Denial of such right   would amount to the denial of a fair trial.  Thus, it is   essential that the rules of procedure that have been  designed to ensure justice are scrupulously followed,   and the court must be zealous in ensuring that there   is no breach of the same. (Vide Talab Haji Hussain v.   Madhukar Purshottam Mondkar & Anr.,  AIR 1958 SC  376;  Zahira  Habibulla  H.  Sheikh  &  Anr.  v.  State  of   Gujarat & Ors. AIR 2004 SC 3114; Zahira Habibullah   Sheikh & Anr. v. State of Gujarat & Ors., AIR 2006 SC  1367;  Kalyani  Baskar  (Mrs.)  v.  M.S.  Sampoornam  (Mrs.) (2007) 2 SCC 258; Vijay Kumar v. State of U.P.   & Anr., (2011) 8 SCC 136; and Sudevanand v. State   through C.B.I. (2012) 3 SCC 387.)”

23. From a  conspectus  consideration  of  the  above decisions,  

while dealing with an application under Section 311 Cr.P.C. read  

along with Section 138 of the Evidence Act, we feel the following  

principles will have to be borne in mind by the Courts:

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a) 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?

b) The exercise of  the widest  discretionary power  under Section 311 Cr.P.C. should ensure that the  judgment  should  not  be rendered on inchoate,  inconclusive speculative presentation of facts, as  thereby the ends of justice would be defeated.

c) 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.

d) The exercise of power under Section 311 Cr.P.C.  should  be  resorted  to  only  with  the  object  of  finding out the truth or obtaining proper proof for  such facts, which will lead to a just and correct  decision of the case.  

e) The exercise of the said power cannot be dubbed  as filling in a lacuna in a prosecution case, unless  the facts and circumstances of the case make it  apparent that the exercise of power by the Court  would result in causing serious prejudice to the  accused, resulting in miscarriage of justice.  

f) The  wide  discretionary  power  should  be  exercised judiciously and not arbitrarily.

g) The Court must satisfy itself that it was in every  respect essential to examine such a witness or to  recall  him  for  further  examination  in  order  to  arrive at a just decision of the case.

h) 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.

i) The  Court  arrives  at  the  conclusion  that  additional evidence is necessary, not because it  would be impossible to pronounce the judgment  without it, but because there would be a failure  

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of  justice  without  such  evidence  being  considered.

j) Exigency  of  the  situation,  fair  play  and  good  sense should be the safe guard, while exercising  the  discretion.  The  Court  should  bear  in  mind  that no party in a trial  can be foreclosed from  correcting errors and that if proper evidence was  not  adduced  or  a  relevant  material  was  not  brought on record due to any inadvertence, the  Court should be magnanimous in permitting such  mistakes to be rectified.

k) The  Court  should  be  conscious  of  the  position  that after all the trial is basically for the prisoners  and  the  Court  should  afford  an  opportunity  to  them  in  the  fairest  manner  possible.  In  that  parity  of  reasoning,  it  would  be  safe  to  err  in  favour  of  the  accused  getting  an  opportunity  rather  than  protecting  the  prosecution  against  possible prejudice at the cost of the accused. The  Court  should  bear  in  mind  that  improper  or  capricious  exercise  of  such  a  discretionary  power, may lead to undesirable results.  

l) The additional evidence must not be received as  a disguise or to change the nature of the case  against any of the party.

m) The power must  be exercised keeping in  mind  that the evidence that is likely to be tendered,  would be germane to the issue involved and also  ensure that an opportunity of rebuttal is given to  the other party.

n) The  power  under  Section  311  Cr.P.C.  must  therefore, be invoked by the Court only in order  to meet the ends of justice for strong and valid  reasons and the same must  be exercised with  care,  caution  and  circumspection.  The  Court  should  bear  in  mind  that  fair  trial  entails  the  interest  of  the  accused,  the  victim  and  the  society  and,  therefore,  the  grant  of  fair  and  proper opportunities  to the persons concerned,  must be ensured being a constitutional goal, as  

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well as a human right.  

24. Keeping the above principles in mind, when we examine the  

case on hand, at the very outset, it will have to be stated that the  

High Court,  while  passing  the  impugned order  has  completely  

ignored the principal objectives with which the provision under  

Section 311 Cr.P.C. has been brought into the statute book. As  

rightly argued by the learned counsel for the appellant, at the  

foremost when the trial  was very much in the grip of the trial  

Court,  which  had every  opportunity  to  hear  the appellant,  the  

State, as well as the second respondent, had not even bothered  

to verify whether the appellant, who was facing criminal trial was  

impleaded as a party to the proceedings in the High Court.  A  

perusal  of  the  order  discloses  that  the  High Court  appears  to  

have passed orders on the very first hearing date, unmindful of  

the consequences involved.  The order does not reflect any of the  

issues dealt with by the Learned Sessions Judge, while rejecting  

the application of the respondents in seeking to re-examine PW-

9, the second respondent herein.  Though orders could have been  

passed in this appeal by remitting the matter back to the High  

Court,  having  regard  to  the  time  factor  and  since  the  entire  

material  for  passing  final  orders,  are  available  on  record  and  

since all parties were before us, the correctness of the order of  

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the Sessions Judge dated 18.11.2009, can be examined and final  

orders can be passed one way or the other in the present criminal  

appeal itself.   

25. With that view, when we examine the basic facts, we find  

them  as  noted  by  the  learned  trial  Judge  being  indisputably  

contrary to the complaint preferred by the second respondent on  

8.7.1999,  in  the  police  station  in  case  No.  71/1999,  wherein  

offences under Section 324/307/34 IPC were reported alongwith  

Section 27 of the Arms Act. Based on the report of the doctor, the  

chargesheet  came  to  be  filed  bearing  No.127/99,  dated  

31.10.1999, under Sections 324/307/34 IPC and no charge under  

Section 27 of the Arms Ac was laid.  The said case was put to trial  

and parties were participating.  In the course of the trial, the turn  

of  examination  of  PW-9,  the  second  respondent  came  on  

16.3.2007, nearly after eight years from the date of occurrence.  

Second respondent made a categorical statement in his evidence  

that  he  never  made  any  statement  to  the  police  nor  was  he  

beaten on the date of occurrence, nor was he hit by any bullet  

shot.   Further  he  made  a  clear  statement  that  the  injury  

sustained  by  him  was  due  to  the  fall  into  the  hole  dug  for  

constructing a latrine, where some instruments caused the injury  

sustained by him.  He also made a categorical statement that his  Criminal Appeal No.         of 2013 (@ SLP (Crl.) No.2400 of 2011)   19 of 25

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sons PWs-4 and 5, Babloo and Munna Kumar, were not present at  

the  place  of  occurrence  since  one  was  staying  in  a  hostel  in  

Hulasganj and the other was at Ranchi on the date and time of  

occurrence, namely, on 07.07.1999, at about 5 p.m.  While the  

said version of the second respondent was stated to have been  

recorded by the Court below on 16.3.2007, and the evidence of  

the prosecution was stated to have been closed on 4.4.2007, the  

defence evidence seem to have also commenced.   

26.  In  that  scenario,  the  second  respondent  filed  the  present  

application under Section 311 Cr.P.C. on 24.8.2007, i.e.,  nearly  

after five months after his examination by the trial Court.  While  

filing the said application, the second respondent claimed that his  

evidence tendered on 16.3.2007, was not out of his own free will  

and volition, but due to threat and coercion at the instance of the  

accused persons, including the appellant.  It was contended on  

behalf of the second respondent that the accused persons posed  

a threat by going to the extent of eliminating him and that such  

threat  was  meted  out  to  him  on  15.3.2007,  when  he  was  

kidnapped from his wheat field by the accused, along with two  

unknown persons.   

27. The trial Court having examined all the above factors in its  

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order dated 18.11.2009, has held as under:

“….Either  at  the  time  of  his  evidence  in  Court  or   subsequent  to  his  evidence  he  never  made  any  complaint  to  the  court  or  any other  officer  viz.  the   C.J.M. or any police officer that accused persons had   yielded any pressure upon him to turn hostile to the   prosecution and to  give a go by to  the prosecution   case. He has also argued that he did not also file any  affidavit or case in this  regard. Rather when on the  basis of the information dated 30.5.2007 given by the   accused Bindeshwar Yadav Khizersarai Police Station  case  No.78/2007  dated  7.6.2008  was  registered  by   the police the informant Suresh Prasad has filed this   petition  and  has  also  got  the  similar  petition  filed   through the Additional Public Prosecutor which has got   no legs to stand and the same is fit to be rejected.  He  also filed a photocopy of the FIR to Khizersarai Police   Station case No.78/2007 in support of his argument.”

28. After noting the above submissions made on behalf  of the  

accused, the trial Court held as under:

“….After the evidence of the informant, Suresh Prasad   (PW-9)  on  16.03.2007  the  Court  of  Addl.  Sessions   Judge, F.T.C.-5 closed the evidence of prosecution on  04.04.2007  after  giving  opportunity  to  the  learned   Addl.  P.P.  to  produce  the  remaining  witness  on  26.03.2007 and 04.04.2007 which he could not do on   the ground that the time limited by the Hon’ble Court   has  expired.  The  Lordships  of  Supreme  Court  have  held in Dohiyabhai Vs. State, AIR 1964 SC 1563 that   “Right to re-examine a witness arises only after the   conclusion of cross examination and S.C. 138 says it   shall be directed to the explanation of any part of his   evidence  given  during  cross  examination  which  is   capable of being construed unfavourably too his own  side. The object is to give an opportunity to reconcile   the  discrepancies  if  any between the  statements  in   examination  in  chief  and  cross  examination  or  to   explain  any  statement  inadvertently  made  in  cross   examination  or  to  remove  any  ambiguity  in  the   

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deposition or suspicion cast on the evidence by cross   examination.  Where there is  no ambiguity or where   there  is  nothing  to  explain,  question  put  in  re- examination with the sole object of giving a change to   the  witness  to  unto  the  effect  of  the  previous   statement should not be asked during re-examination  (S.142). Section 154 is wide in its scope and court can   permit a person calling a witness to but question in   the nature of  cross examination at  the stage of  re- examination provided it take care to give opportunity   to the adverse party to cross examine the witness in   the  such  case”.  It  is  clear  from  the  afore  quoted   principles decided by the Hon’ble Apex Court and from  the evidence of PW-9 as well as from the instant two  aforesaid petitions filed on behalf of the PW-9 and the  Additional  P.P.  that  the  cross  examination  of  PW-9   does not contain any evidence against his evidence in   chief which could be explained or made clear by re- examination of PW-9 through his re-examination vide   Section  138  Evidence  Act  or  Section  311  of  the   Criminal Procedure Code. It is also clear that PW-9 had   filed petition after filing of the case against him by the   accused.  As  such  the  two  instant  petitions  are  not   maintainable. However, whether the hostility of PW-9  would have been tested on the touch stone of Section   145 Evidence Act by examining the I.O. as some other   prosecution witness  have supported the prosecution   case.  The evidence of  the I.O.  of  the case is  taken   would have sufficed the end of justice.”

29. We find that the factors noted by the trial Court and the  

conclusion arrived at by it  were all  appropriate and just,  while  

deciding the application filed under Section 311 Cr.P.C.  We do  

not  find  any  bonafides  in  the  application  of  the  second  

respondent,  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  Criminal Appeal No.         of 2013 (@ SLP (Crl.) No.2400 of 2011)   22 of 25

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threat  meted out  to  him at  the instance  of  the appellant  and  

other accused.  It was quite apparent that the complaint, which  

emanated  at  the  instance  of  the  appellant  based  on  the  

subsequent  incident,  which  took  place  on  30.5.2007,  which  

resulted in the registration of the FIR in Khizersarai Police Station  

in  case  No.78/2007,  seem  to  have  weighed  with  the  second  

respondent to come forward with the present application under  

Section 311 Cr.P.C.,  by way of an afterthought.  If  really there  

was a threat to his life at the instance of the appellant and the  

other accused, as rightly noted by the Court below, it was not  

known  as  to  why  there  was  no  immediate  reference  to  such  

coercion  and  undue  influence  meted  out  against  him  at  the  

instance  of  the  appellant,  when  he  had  every  opportunity  to  

mention  the  same to  the  learned  trial  Judge  or  to  the  police  

officers or to any prosecution agency.  Such an indifferent stance  

and silence maintained by the second respondent herein and the  

categorical  statement  made  before  the  Court  below  in  his  

evidence as appreciated by the Court below was in the proper  

perspective,  while  rejecting  the application of  the respondents  

filed under Section 311 Cr.P.C.   In our considered opinion, the  

trial Court, had the opportunity to observe the demeanour of the  

second respondent,  while  tendering  evidence which persuaded  

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the trial  Court  to  reach the said conclusion and that  deserves  

more credence while examining the correctness of the said order  

passed by the trial Court.   

30. In the light of the above conclusion, applying the various  

principles set out above, we are convinced that the order of the  

trial Court impugned before the High Court did not call for any  

interference in any event behind the back of the appellant herein.  

The  appeal,  therefore,  succeeds.   The  order  impugned  dated  

9.12.2010, passed in Crl. M.P. 12454/2010 of the High Court is set  

aside.   The order of  the trial  Court  stands restored.   The trial  

Court shall proceed with the trial.  The stay granted by this Court  

in the order dated 7.3.2011, stands vacated.  The trial Court shall  

proceed with the trial from the stage it was left and conclude the  

same expeditiously, preferably within three months from the date  

of receipt of the copy of this order.

……...............................................J. [T.S. Thakur]

…………….………………………………J.             [Fakkir Mohamed Ibrahim Kalifulla]

New Delhi;

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July 04, 2013

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