Criminal Misc. No. M-13669 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-13669 of 2010 Date of Decision: 17.05.2010 Kedar son of Mahi Pal r/o Shahjahapur, Police Station Chhainasa, District Faridabad. ... Petitioner Versus State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Surya Parkash, Advocate, for the petitioner. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., for quashing the order dated 17.04.2010 (Annexure P1), rendered by the Court of Additional Sessions Judge, Faridabad, vide which, it dismissed the application, under Section 311 Cr.P.C., filed by the petitioner, for recalling/re-examination of Kuldip Singh @ Bhapa son of Mukhtiar Singh, and, Vivek Rawat son of Padam Singh, for confronting them with affidavits DW10/A and DW8/A, submitted by them, in Criminal Misc. No. 14242-M of 2007, has been filed by him (petitioner). 2. FIR No. 501 dated 11.12.05, under Sections 148, 302 and 323 read with Section 149 IPC, and, 25 Arms Act, Police Station 7, Criminal Misc. No. M-13669 of 2010 2 Faridabad, was registered, against the petitioner and others, relating to the murder of one Sanjeev Tewatia, which took place, on 10.12.05. 3. During the trial, the prosecution examined Kuldip Singh @ Bhapa, PW10, and, Vivek Rawat, PW11, on 12.09.06, wherein, both of them identified three accused, namely Bijender, Kedar and Lalkan @ Devender, amongst the assailants. The prosecution, closed its evidence, on 08.12.06. The statements of the accused, under Section 313 Cr.P.C., were recorded, and the case, was fixed for defence evidence and arguments. 4. In the meanwhile, one Raghbir, filed a Criminal Misc. No. 14242-M of 2007, for summoning Sunil Tewatia, as a witness. That revision petition, was accepted, by this Court, vide order dated 03.02.2010. In pursuance of the order, passed by this Court, statement of Sunil Tewatia, was recorded, on 07.04.2010. 5. During this period, the petitioner, moved an application, stating therein, that in Criminal Misc. No. 14242-M of 2007, referred to above, Kuldip Singh @ Bhapa, PW10, and Vivek Rawat, PW11, had filed their affidavits DW10/A and DW8/A respectively, wherein, they had taken quite a different stand, and they be recalled for their further cross-examination, for putting them these affidavits. 6. The application, under Section 311 Cr.P.C., moved by the petitioner, was dismissed, vide the order aforesaid. 7. Feeling aggrieved, the instant petition, has been filed by the petitioner. Criminal Misc. No. M-13669 of 2010 3 8. I have heard the Counsel for the petitioner, and, have gone through the documents, on record, carefully. 9. The Counsel for the petitioner, submitted that, the recall of Kuldip Singh @ Bhapa, and, Vivek Rawat, prosecution witnesses, was essential, for the just decision of the case, for confronting them with affidavits DW10/A and DW8/A, submitted by them. He further submitted that, the Court below, illegally declined the application, under Section 311 Cr.P.C. He further submitted that, on account of non-recall of these witnesses, a great prejudice, was caused, to the petitioner. He further submitted that, the witnesses, could be summoned or recalled, at any time, for further examination or cross- examination, if the Court, comes to the conclusion, that their evidence, was essential, for the just decision of the case, or to do complete justice between the parties. He further submitted that, the order, being illegal, is liable to be set aside. 10. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the petitioner, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. The statements of Kuldip Singh @ Bhapa and Vivek Rawat, as PW10 and PW11, respectively, were recorded, on 12.09.06. The affidavits were allegedly submitted by Kuldip Singh, in the High Court, on 18.04.08, and, by Vivek Rawat, on 11.09.08. It was allegedly a subsequent statement, made by these witnesses. The case, was fixed, for the defence evidence and arguments, when the application, under Section 311 Cr.P.C., was Criminal Misc. No. M-13669 of 2010 4 moved. The copies of the affidavits Annexures P11 and P12, have been placed, on the record. In both these affidavits, these witnesses, allegedly took a contradictory stand to the one taken by them in their statements, earlier made by them, in the Court, on oath, wherein, the name of the petitioner, as one of the assailants was mentioned. It appears that, after both these witnesses supported the case of the prosecution, qua the petitioner, the aforesaid affidavits, were allegedly procured, by him (petitioner), from them, so as to absolve himself of the criminal liability. In Rachapalli Abbulu Vs. State of Andhra Pradesh, 2002(2), RCR (Crl.), 414 (S.C.), it was held, that the practice, adopted by the defence side, in obtaining the affidavits of the prosecution witnesses, deserves to be deprecated. That, in a way, amounts to an attempt, aimed at dissuading the witnesses, from speaking the truth, or resiling from their statements, earlier made in the Court. Recall of these witnesses, for confronting them with the affidavits, referred to above, would have amounted to travesty of justice, instead of advancing the cause thereof. The recall of the witnesses, for confronting them with the aforesaid affidavits, which came into existence, later in date, and, which, as stated above, were allegedly procured by the accused, to achieve the oblique motive, could not be said to be the purpose of Section 311 Cr.P.C. Under these circumstances, the trial Court, was right, in dismissing the application. 11. For the reasons, recorded above, Criminal Misc. No. M- 13669 of 2010, being devoid of merit, must fail and the same is Criminal Misc. No. M-13669 of 2010 5 dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 12. Registry is directed, to comply with the order, by sending the copies thereof, to the Courts concerned, immediately. 17.05.2010 (SHAM SUNDER) Amodh JUDGE