* THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR + CRL. R.C. NO. 1845 OF 2009 % 17-11-2009 # Ch. Ramakoteshwara Rao and others. ..… Petitioners Vs. $ The State of A.P., rep. by Public Prosecutor, High Court of A.P., through Dy. Superintendent of Police, CID, Hyderabad. …Respondent/Complainant ! Counsel for the Petitioners : Sri P. Prasad ^ Counsel for the Respondent : Public Prosecutor <Gist : >Head Note: ?Cases Referred: 1. 1999 Crl.L.J. 2296 2. AIR 1963 Supreme Court 1531 3. AIR 2001 Supreme Court 2120 4. 2004 CrLJ 553 5. AIR 1958 Allahabad 439 6. 1996 CrLJ 365 7. 2001 CrLJ 450 8. 2004 Crl.L.J 583 = AIR 2004 SC 524 THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 1845 of 2009 Date: 17.11.2009 Between: Ch. Ramakoteshwara Rao and others. .. Petitioners. And The State of AP rep. by Public Prosecutor, High Court of A.P., through Dy. Superintendent of Police, CID, Hyderabad. .. Respondent/Complainant THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 1845 of 2009 Order: This revision is directed against the orders dated 05.10.2009 passed in Crl.M.P. No.395 of 2009 in Criminal Appeal No.147 of 2009 by the learned V Additional Metropolitan Sessions Judge (Mahila Court)-cum-XIX Additional Chief Judge, Hyderabad. The petitioners herein who are A2, A4 and A5 filed a petition under Section 391 Cr.P.C to summon PWs.1 and 8 for further cross- examination to elicit certain omissions and contradictions as additional evidence. Since the said petition was dismissed, the petitioners herein filed the present revision challenging the said order. The brief facts of the case are as follows. The de facto complainant P. Madhavi who is examined as PW.1 is the wife of A1. A2 is the father-in-law, A3 is the mother-in-law, A4 is the brother-in-law and A5 is the sister-in-law of PW.1. PW.1 lodged a complaint to the police stating that she is working as Senior Accountant in Government Central Press, Chanchalguda, Hyderabad, and that her marriage was performed with A1 in the year 1993 and that at the time of marriage her parents gave Rs.2,00,000/- dowry and Rs.50,000/- towards other expenses and that after marriage she joined her husband. It is further alleged that A1 started harassing her demanding additional dowry and that at that time he was unemployee. It is also her case that in 1994 she gave birth to a female child and that in 1995 her husband secured a job as Accounts Assistant in GAIL and joined in his job at Uttar Pradesh. It is also the case of PW.1 that A1 never bothered to look after her and her daughter and that A1 had not taken her with him. It is also alleged that A1 demanded Rs.3,00,000/- dowry and that with great difficulty her parents arranged the said amount. It is also her case that subsequently she applied leave and joined her husband in U.P. It is also her case that even in U.P. her husband harassed her mentally and physically demanding additional dowry. It is also her case that her father expired and her elder sister and younger brother were unable to fulfill the demand of A1. It is also her case that in the year 2000 A1 was transferred to Hyderabad and that he had obtained loan of Rs.10,00,000/- as House Building Advance and constructed first floor on the existing building of his father at Miyapur. It is also the case of PW.1 that A1 left her in her parents house. It is also her case that on the instigation of his parents and sister, A1 harassed her for additional dowry and due to financial constraints she could not fulfill his demand. Basing on the above complaint, the police registered a case in Crime No.854 of 2002 under Sections 498-A, 323 and 406 IPC and under Sections 4 and 6 of Dowry Prohibition Act. On the representation of PW.1, the case was transferred to CID for further investigation. On 01.11.2002 the parties entered into a compromise on some terms and conditions. It is her further case that even after the settlement, the terms of settlement were not implemented and that A1 again harassed her on one pretext or the other. It is also her case that on 09.05.2003 when she went to see her daughter, on the next day A1 and his brother A4 break open the lock of the house and had taken away all the household articles, clothes and gold jewellery without informing her. Subsequently, A1 filed a petition before Family Court, Hyderabad for divorce. The CID Police, after completing investigation, laid charge sheet against the accused. After conclusion of the trial, A1, A2, A4 and A5 were convicted for the offences punishable under Sections 498-A and 406 IPC and under Sections 4 and 6 of the Dowry Prohibition Act and A1 was further convicted under Section 323 IPC. Challenging the said judgment, Criminal Appeal No.147 of 2009 was filed. Then the petitioners filed Crl.M.P. No.395 of 2009 to summon PWs.1 and 8 for further cross- examination to elicit certain omissions and contradictions as additional evidence. Since the said petition has been dismissed by way of impugned order the same is under challenge in this revision. The main contention of the learned counsel for the petitioners is that A4 never stayed with A1 and PW.1 in the original complaint did not mention the name of A4. It is also his submission that PW.1 also did not mention the name of A4 in her statement recorded under Section 161(3) Cr.P.C. His main submission is that in the evidence of PW.1 she had attributed overt acts against A4 and the same is clearly an omission but he same was not marked and not confronted to the Investigating Officer which resulted in miscarriage of justice. It is also his submission that the said mistake occurred inadvertently and need to be rectified in the interest of justice. It is also argued that the evidence of PW.1 that A2 and A4 demanded additional dowry is nothing but improvement which amounts to material contradiction. Thus the main contention of the learned counsel for the petitioners is that the above referred omissions and contradictions if not confronted to the concerned witnesses great prejudice would be caused to the petitioners. Both the learned Additional Public Prosecutor and the learned counsel for the de facto complainant (PW.1) submitted that the criminal case was registered on 22.10.2002, charge sheet was filed on 23.01.2004, trial commenced on 08.10.2007, PW.1 was cross- examined on 24.10.2007 and 26.10.2007 and subsequently also she was recalled and further cross-examined at length. It is also submitted that PWs.1 to 9 were examined and 11 documents were marked on behalf of the prosecution and on behalf of the accused DWs.1 to 3 were examined and 46 documents were marked. It is further argued that the present petition has been filed only to harass PW.1. It is further submitted that the witnesses cannot be summoned for further cross-examination at appellate stage. Learned counsel for the petitioners, in reply, submitted that the Court is empowered to take additional evidence under Section 391 Cr.P.C and even under Section 311 Cr.P.C the Court is empowered to recall the witnesses already examined in the interest of justice. The only point that arises for consideration is whether the appellate Court is justified in dismissing the Crl.M.P. No.395 of 2009 in Crl.A.No.147 of 2009 and refusing to summon PWs.1 and 8 for further cross-examination. Section 391 Cr.P.C. is as follows. S.391. Appellate Court may take further evidence or direct it to be taken.-(1) in dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. Additional evidence means some other evidence in addition to the evidence already taken by the trial Court. Where in a case it appears that the material evidence was not produced due to inadvertence and the same is necessary for just conclusion of the case, the Court may exercise powers under Section 391 Cr.P.C. For example, a report of the forensic expert or rough sketch of the scene of offence, though it is part of record but could not be marked then in the interest of justice the Court may allow either prosecution or defence to lead additional evidence. For example, in a case the accused claims that he was in jail on a particular day when police claims to have seized material object from his possession then the accused may file an application under Section 391 Cr.P.C. to summon the records from the concerned Jail to examine whether the claim of alibi of the accused is correct or not. In case between Jugal Kishore v. Roshan Lal[1], the Rajasthan High Court observed that while exercising its powers under Section 391 Cr.P.C. the Court of appeals cannot allow the permission to produce new documents for being used as evidence. Thus the powers of a Court cannot be exercised to fill up the lacuna in the case of prosecution or defence. In another circumstance the appellate Court may exercise power under Section 391 Cr.P.C. i.e., where the trial Court refused to take essential or important evidence. However, it appears that this Section is not intended to remedy the negligence or carelessness of the prosecution who had ample opportunity to produce the evidence. It is also not intended to give a second chance to prosecution to prove its case or to fill up the gaps in the evidence. In case between Ukha Kolhe v. State of Maharastra[2], it was held that the appellate Court should not direct retrial merely to enable prosecution to fill up lacuna in prosecution evidence. Learned counsel for the petitioners relied on the judgment reported in Rambhau v. State of Maharashtra[3]. In that case the factum of payment on 24th January as per the version of PW.1 Sangamlal was not put to the accused persons in their examination under Section 313 Cr.P.C and it was argued that such circumstances cannot b used against the accused. In the above circumstances, the High Court conducted additional examination of both the accused persons in the High Court so as to rectify the irregularity as cropped up and pointed out by the defence. The Hon’ble Supreme Court held as follows. “It is not a defect incurable in nature but a mere irregularity which the High Court thought it fit to cure, as such we do not find any material objection to such a method as stands adopted by the High Court. The irregularity has been cured.” As seen from the above referred case, it is clear that the facts of the case on hand are entirely different from the facts of that case. Therefore, it appears that the said decision is not helpful to the petitioners. Recalling of a witness for further cross-examination to elicit omissions or contradictions cannot be treated as additional evidence. Additional evidence means the oral or documentary evidence which could not be adduced before the trial Court for sufficient and bona fide reasons and which is essential for just conclusion of the case. Therefore, it appears that Section 391 Cr.P.C is not applicable to recall the witnesses for further cross-examination. If certain questions are not put to a witness and certain omissions and contradictions are not marked and if the witnesses have to be recalled for further cross- examination such further cross-examination cannot be treated as additional evidence. Coming to the facts of this case, admittedly, the case was registered on 22.10.2002 and charge sheet was filed on 23.01.2004. Trial commenced on 08.10.2007 and PW.1 was examined in part and she was further examined in chief on 24.10.2007. On that day, she was cross-examined and again recalled on 26.10.2007 for further cross-examination. Again she was recalled and further cross- examined on 20.11.2007. As seen from the cross-examination of PW.1 it is clear that PW.1 was cross-examined at length extensively. Even after closure of cross-examination she was again recalled and further cross-examined on 26.10.2007 and 20.11.2007. Therefore, the petitioners cannot say that they have no opportunity to cross-examine PW.1. When there was an ample opportunity to cross-examine the witness and to elicit omissions and contradictions and if the accused failed to cross-examine the witness even after the witness was recalled for further cross-examination the accused cannot take advantage of his own lapse. More over the first information report has already been marked. When the FIR is marked, which includes the statement of PW.1 in Ex.P1, the accused can always argue pointing out the contradictions between the original complaint and the evidence given before the Court. Moreover the case is at the appellate stage. There is no provision to recall the witnesses at the appellate stage. As I have already discussed, Section 391 Cr.P.C. deals with additional evidence and not with regard to recalling of a witness for further cross- examination. Section 311 Cr.P.C is as follows. S. 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. In M.S. Saini v. Secretary, Department of Home, Bangalore[4], it was held that when the case is posted for judgment, the trial stands terminated consequently, the power under Section 311 of the Code ought not to have been invoked by the Magistrate. Further in Ramjeet v. The State[5], it was held that the “Trial” is not finally concluded when evidence is taken and arguments are heard. A trial continues till the judgment is delivered and so the power to examine witness can be exercised so long as judgment has not been pronounced. It appears that where the accused is trying to prolong the trial, the Court will be justified in rejecting the application moved under Section 311 Cr.P.C. In R.N. Kakkar v. Hanif Gafoor Naviwala[6], it was held that no party can take advantage of its own wrong and if the powers are exercised under this section to enable the prosecution to plug-in the holes in its case, the aforesaid principle would be given a go bye. While exercising the powers under Section 311 the Court should bear in mind that the larger the power one more is the circumspection required before exercising the same. In B.D. Goel v. Ebrahim Haji Husen Sanghani[7], it was held that where all witnesses were examined and statements of accused recorded under Section 313 of Cr.P.C then rejection of application for recalling witnesses by trial Court is just and proper. In K. Anbazhagan v. Superintendent of Police[8], it was held that to recall a witness on the ground that the counsel had been busy in attending to some other case is not justified. It is settled law that the powers under Section 311 Cr.P.C. are discretionary. The accused person cannot compel the Court to exercise this discretion at any particular stage of the trial. The power has to be exercised judiciously. It appears that in a case after completion of the cross-examination when the witness is available in the Court or the Court premises if a request is made to recall the said witness for further cross-examination of the witness on the ground that some important questions were not put to the witness then the Court may exercise powers under Section 311 Cr.P.C. and recall the witness. Normally the power to recall a witness should be exercised either on the same day or within the reasonable time under exceptional circumstances. If the power to recall a witness is exercised in casual or routine manner then there is every danger of accused trying to influence the witness or trying to threaten the witness and to make him hostile. It is our experience that in some cases though the witnesses supported the case of the prosecution when they were examined in chief and cross-examined at length, but when the same witness is recalled after considerable time, we have noticed such witnesses turning hostile and supporting the version of the accused. Therefore the Courts should be careful while exercising powers under Section 311 Cr.P.C. For limited purpose of asking only specific questions a witness may be recalled. But such power should be exercised carefully preferable before conclusion of the trial. The further cross-examination should be limited to achieve the purpose for which a witness is recalled i.e., for the limited questions which are permitted to be put to the witness. In the name of further cross- examination a witness should not be allowed to be cross-examined as done at the first instance when the witness is tendered for cross- examination. Therefore, the power to recall a witness cannot be lightly exercised. What is the evidentiary value of the subsequent version given after a considerable time is again a question to be determined by the Court. Since PW.1 was cross-examined in 2007, it appears that there is no justification in recalling the said witness after a period of two years that too at the appellate stage. In view of the above discussion, I am of the view that there are no merits in the revision and the same is accordingly dismissed. ______________________ B. CHANDRA KUMAR, J. Date: 17.11.2009 Nsr LR copy to be marked. [1] 1999 Crl.L.J. 2296 [2] AIR 1963 Supreme Court 1531 [3] AIR 2001 Supreme Court 2120 [4] 2004 CrLJ 553 [5] AIR 1958 Allahabad 439 [6] 1996 CrLJ 365 [7] 2001 CrLJ 450 [8] 2004 Crl.L.J. 583 = AIR 2004 SC 524