Criminal Procedure Code, 1973 – Section 311 – Power to summon material witness, or examine person present – When the important witness of the prosecution has not supported the prosecution theory then by filing an application under Section 311 of Cr.P.C. it has tried to substitute another witness to prove the circumstance, which is not permissible, otherwise, there would never be an end to the Trial and whenever, it is realised, that the prosecution witness has not supported prosecution case, then some other witness would be introduced and would be cited as an important witness for just decision of the case.

Prosecution Case

HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR

PRESENT: HON’BLE MR. JUSTICE G.S. AHLUWALIA

(08/11/2016)

Misc. Criminal Case No. 11021 OF 2016

Kamlesh Diwakar -Vs- State of M. P.

Shri Vivek Mishra, counsel for the applicant; Shri Jai Prakash Sharma, Panel Lawyer for the respondent/State.

JUDGMENT

This petition under Section 482 of Cr.P.C. has been filed against the order dated 14.09.2016 passed by Additional Sessions Judge (Special Judge M.P. Dacoity Avam Vyapaharan Prabhavit Kshetra Adhiniyam) Lahar, District Bhind in S.T. No. 2586/2016 by which the application filed by the complainant under Section 311 of Cr.P.C., for summoning one Jaiveer, has been allowed.

2. The applicant is facing trial for offences punishable under Sections 302, 363, 364-A of IPC and under Section 11/13 of MPDVPK Act.

3. The facts of the case in short, which are necessary for the disposal of this petition, are that a boy namely Vikram had gone to his school on 13.08.2015 at 11:00 AM but thereafter he did not come back. Gum Insaan report was lodged, and later on the dead body of deceased Vikram was recovered from a well situated at Dikoli. The dead body was identified by the relatives of the deceased Vikram. The police after completing the investigation filed the charge sheet against the applicant for the above mentioned offences. It is not out of place to mention here that the case is based on circumstantial evidence.

4. After the prosecution case was over and the statement of the accused under Section 313 of Cr.P.C. was recorded, it appears that the complainant filed an application under Section 311 of Cr.P.C. stating that Vimlesh (PW-1) has stated in his evidence that Brijendra @ Jaiveer who is the resident of Dhanuk Ka Pura, P.S. Nayagaon, District Bhind had informed him that he had seen the deceased Vikram alive in the company of the applicant, therefore, it was prayed that Brijendra @ Jaiveer be called for his examination as a witness as it is essential for the just decision of the case.

5. Refuting the contention of the complainant, the applicant filed his reply and pleaded that Brijendra @ Jaiveer is a real brother-in-law (Sala) of Kamlesh (P.W.8), the father of the deceased Vikram. It was further stated that initially the prosecution had examined one Veer Kumar (PW-7) to prove the circumstance of last seen together but as Veer Kumar (PW-7) has not supported the prosecution case therefore, now the complainant wants to examine the real brother-in-law of Kamlesh in place of Veer Kumar. It was further stated that had Jaiveer seen the deceased for the last time in the company of the applicant, then he would have certainly informed the witnesses as well as the police, and the police would have recorded his statement. It was pleaded that in fact an attempt is being made to fill up the lacuna as Veer Kumar (PW-7) has not supported the prosecution case.

6. The trial court by the impugned order allowed the application on the ground that it is true the statement of Jaiveer was not recorded during the merg investigation as well as under Section 161of Cr.P.C. and his statement under Section 164 of Cr.P.C. was also not got recorded. Similarly, in the statement of Vimlesh (PW-1) recorded under Section 161 of Cr.P.C. as well as under Section 164 of Cr.P.C. this fact was not mentioned that Jaiveer had seen the Vikram in the company of the applicant. However, the application has been allowed only on the ground that inspite of the fact that Vimlesh (PW-1) has stated in his examination-in-chief, that Jaiveer had informed him that he had seen the deceased in the company of the applicant but the applicant has not cross-examined Vimlesh (PW-1) on this statement. Therefore the court below came to the conclusion that for the just decision of the case it is essential to summon Jaiveer as a witness. Accordingly, the application filed by the complainant under Section 311 of Cr.P.C. was allowed.

7. Before considering the facts of the case, it is essential to consider the basic principle underlying Section 311 of Cr.P.C. Section 311 of Cr.P.C. reads as under:-

311. Power to summon material witness, or examine person present

Any Court may, at any 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.”

8. The object underlying Section 311 of Cr.P.C. is that there should not be a failure of justice on account of mistake of any of the party in bringing valuable evidence on record. The Section is not limited only for the benefit of the accused but a witness can be summoned even if his evidence would support the case of prosecution. However, the first part of the section is discretionary and if the court is of the view that it is necessary to examine a witness for a just decision of the case then it shall be obligatory on its part to summon that witness. The court is not empowered under the provisions of Cr.P.C. to compel either the prosecution or the defence to examine any particular witnesses but in weighing the evidence the court can take note of the fact that the best evidence has not been given and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from the facts elucidated in the evidence, in such cases the court should act under the second part of the section. Sometimes the examination of the witness may result in what is thought to be loopholes but it is purely a subsidiary factor and whether the new evidence is essential or not must depend on the facts of each case, and has to be determined by the court.

9. In the case of

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