CRM -M No. 33161 of 2011 (1) IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Criminal Misc. -M No. 33161 of 2011 (O&M) Date of decision : 26.11.2011 Phul Singh ..... Petitioner vs State of Haryana ..... Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present Mr. Hari Om Attri, Advocate, for the petitioner. Mr. Subhash Godara, Additional Advocate General, Haryana. Rajesh Bindal J. 1. Reply of Shamsher Singh, Deputy Superintendent of Police (HQ), Fatehabad, on behalf of respondent no. 1 filed in court is taken on record. 2. One of the summoned prosecution witness has approached this court impugning the order dated 28.9.2011 passed by the learned court below whereby the application filed by him for recording his statement was rejected and an application filed by the Public Prosecutor for not examining the petitioner as one of the prosecution witness was accepted on the ground that he had been won over by the accused. 3. At the time of issuance of notice of motion on 3.11.2011, the following contentions of learned counsel for the petitioner were noticed: “Learned counsel for the petitioner submitted that the application filed by the petitioner for examining him as prosecution witness has been wrongly rejected by the learned court below opining that the prosecution is the master of the case. The stand taken by the prosecution is that the petitioner has been won over by the accused. Learned counsel for the petitioner further submitted that CRM -M No. 33161 of 2011 (2) the allegations against the petitioner are incorrect. In fact, he is to support the prosecution version as he is an eye witness to the occurrence.” 4. The brief facts of the case are that FIR No. 36 dated 10.2.2011 was registered on the complaint of Anil son of Jagdish, resident of Chandrawal, District Fatehabad, under Sections 323, 325, 302, 34 IPC at Police Station Bhuna, District Fatehabad, on account of death of Sonu sister-in-law of the complainant (wife of elder brother of the complainant). It is alleged in the FIR that Dharambir son of Hari Singh along with 3-4 other persons came in Toyota Innova and called father of the complainant to teach him a lesson, on account of his being a witness in a case against Hari Singh. The father of the complainant came out and asked Dharambir to behave properly, but he abused him. On hearing the noise, Sonu and other family members came out. Dharambir caught hold of Sonu and tried to put her in vehicle. Father of the complainant and Phul Singh tried to rescue her, however, Dharambir gave an iron rod blow on the head of Sonu. When the complainant tried to rescue her, Dharambir started his vehicle and put the same in the back gear and run over the father and sister-in-law of the complainant, driving the same at a high speed. Thereafter, all of them ran away from the spot. 5. Learned counsel for the petitioner submitted that number of witnesses were cited in the challan presented in the court. The petitioner was one of them being an independent eye witness. When the evidence of the prosecution started on 28.9.2011, the petitioner had also been summoned to appear as a witness. On that day the prosecution filed an application claiming that the petitioner be left out from the list of witnesses as he had been won over by the accused. The petitioner finding that the other witnesses had been won over by the accused, filed application praying that he being an eye witness, who has been summoned by the court, should be examined as prosecution witness. Both the applications were considered by the learned court below. The application of the petitioner was rejected and the application of the public prosecutor was accepted. CRM -M No. 33161 of 2011 (3) 6. Learned counsel for the petitioner further submitted that on 28.9.2011, statements of PW1 Anil son of Jagdish Sharma and PW2 Jagdish Sharma son of Rameshwar were recorded in chief. Though the cross- examination of these witnesses should have been recorded on the same date, however, the same was deferred on the request of the accused claiming that the counsel, who had to cross-examine had gone to attend hearing of the case at Bhiwani. In their examination-in-chief on 28.9.2011, all the prosecution witnesses had fully supported the prosecution version. The case was adjourned to 9.11.2011. On that day cross-examination of PW1 and PW2 was conducted. During the course of their cross-examination, these two prosecution witnesses stated certain facts which run contrary to their statements made in the examination-in-chief. They had even stated that it is wrong to suggest that true version was given by them in court when their examination-in-chief was recorded. The submission is that the aforesaid development clearly endorsed the apprehension expressed by the petitioner when he filed application for his examination as a prosecution witness on the plea that other witnesses had been won over. The two prosecution witnesses were declared hostile by the public prosecutor. On 9.11.2011, statements of five other prosecution witnesses were recorded and all of them were declared hostile. The petitioner had pleaded before the court below and also before this court to get his statement recorded supporting the prosecution version as he is the eye witness to the crime. 7. Placing reliance upon two Division Bench judgments in Pappu Ram @ Pappu vs State of Punjab 2007 (3) R. C. R. (Criminal) 455, State of Punjab vs Surjit Singh 2008 (1) R. C. R. (Criminal) 266, and two single Bench judgments in Satnam Singh vs State of Punjab 1996 (3) R. C. R. (Criminal) 369 and Chuhar Khan vs State of Punjab 2000 (2) R. C. R. (Criminal) 726, learned counsel for the petitioner submitted that the material eye witness in the list cannot be left out merely on the statement of public prosecutor claiming that he had been won over. He is required to be examined in court. He further referred to Lt. Col. S. J. Chaudhary vs State (Delhi Administration) AIR 1984 SC 618 and P. G. Thampi vs State of Kerala and others 1994 Criminal Law Journal 654, to submit that the trial CRM -M No. 33161 of 2011 (4) must proceed on day to day basis. It is for the counsel to make necessary arrangements for examination of the witness in case he has to appear in another case. In case he does not appear, that will be breach of his professional duties. It is no ground for adjourning the case. 8. Further relying upon the provisions of Section 311 of the Code of Criminal Procedure, the submission of learned counsel for the petitioner is that the court has been given ample power to 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 in case it finds that evidence of such a person is essential for just decision of the case. It is submitted that the statement of the petitioner should have been recorded and evidentiary value thereof could be considered by the court at the time of conclusion of trial. The petitioner could not be left out merely on the asking of the public prosecutor. 9. On the other hand, learned counsel for the State submitted that after examination of two prosecution witnesses in chief on 28.9.2011, the prosecution had filed an application for deleting the name of the petitioner as one of the prosecution witnesses on the ground that he had been won over by the accused. On the same day, the petitioner had also filed application for getting his statement recorded. However, the learned court below rejected the application of the petitioner and accepted that of the public prosecutor finding the same to be meritorious. It was within the jurisdiction of the court. Public prosecutor being master of the case has the authority to leave any of the prosecution witnesses once it is found that he has been won over. 10. Heard learned counsel for the parties and perused the paper- book. 11. After hearing learned counsel for the parties, in my opinion, the following three issues are required to be considered by this court in the present case:- (i) The course to be adopted by the court in case prosecution files an application to leave any of the prosecution witnesses claiming that the same has been CRM -M No. 33161 of 2011 (5) won over. (ii) Adjournment of the trial specially the cross-examination of a witness, who has already been examined in chief on the ground that the counsel had gone to attend the hearing of another case at a different place or in a different court. (iii) The course to be adopted in case the witness who had fully supported the version of the prosecution in his examination-in-chief and resiles from the same in his cross-examination. Issue No. (i) 12. The issue as to the course to be adopted in case the prosecution claims that any of the witnesses having been won over should not be examined as prosecution witness, has been considered in Pappu Ram's case (supra) where referring to earlier judgments of Hon'ble the Supreme Court in Habeeb Mohammad vs The State of Hyderabad AIR 1954 SC 51, Stephen Seneviratne vs The King AIR 1936 SC 289, and Calcutta High Court judgment in Ram Ranjan Roy vs Emperor AIR 1915 Calcutta 545, it was opined that mere suffering a statement on behalf of the prosecution that the witness had been won over was not conclusive of the question that the witness has been won over. Such an inference should be drawn only after the witness has appeared in the witness box and his statement recorded. In Surjit Singh's case (supra), a Division Bench of this court referred to following lines from an earlier judgment of this court in Satnam Singh's case (supra) viz “'When the prosecution alleges that a material witness has been won over by the accused, it is still necessary that such witness must be produced and examined at the trial to reveal the truth”. Similar is the view expressed in Chuhar Khan's case (supra). 13. In the present case, when the prosecution filed application for deleting the name of the petitioner from the list of prosecution witnesses on 29.9.2011 claiming that he had been won over, only examination-in-chief of two prosecution witnesses had been recorded. Both had fully supported the prosecution version. Their cross-examination was deferred on the request of CRM -M No. 33161 of 2011 (6) counsel for the accused. On what basis opinion was formed by the public prosecutor that the petitioner had been won over, is not evident from the application filed before the court below. It merely states that the petitioner, who is an eye witness has been won over by the accused and the prayer was made for not recording his statement as PW. 14. On the same day, the petitioner had moved application stating that he being the eye witness should be examined as he was present in court. The application filed by the public prosecutor was allowed whereas the application filed by the petitioner was rejected by the learned court below merely stating that as per provisions of Section 301 Cr.P.C., the public prosecutor is considered incharge of criminal case and he sought to give up the petitioner as prosecution witness being won over. As to what was the basis thereof is not evident from the order passed by the learned court below. 15. In terms of the enunciation of law referred to above, the prosecution witness was required to be examined before declaring him hostile having been won over by the accused. Even otherwise, Section 311 Cr.P.C. gives ample powers to the court to 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, in case it finds that evidence of such a person is essential for just decision of the case. The failure to hear material witness is certainly denial of fair trial. 16. Section 311 of the Code of Criminal Procedure reads as follows: "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." CRM -M No. 33161 of 2011 (7) 17. The scope of Section 311 Cr.P.C. was considered by Hon'ble the Supreme court in Appeal (Criminal) No. 446-449 of 2004- Zahira Habibullah Sheikh and another vs State of Gujarat and others vide judgment dated 8.3.2006. The relevant paras thereof are extracted below:- “The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequences, the first part gives purely discretionary authority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon any one as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts. CRM -M No. 33161 of 2011 (8) 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. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule. The Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular CRM -M No. 33161 of 2011 (9) witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the Court can take note of the fact that the best available 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 facts elicited in the evidence. In such cases, the Court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the Court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge. The object of the Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross- examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross- examination to the complainant. These aspects were highlighted in Jagat Rai v. State of Maharashtra, (AIR 1968 SC 178).” 18. The petitioner in the present case claims that he is an eye witness to the crime and has been cited as prosecution witness. His stand from the very beginning is that he wanted to state the truth before the court but he was prevented from doing so. From the facts on record it is not CRM -M No. 33161 of 2011 (10) evident as to on what basis the public prosecutor had filed application claiming that the petitioner had been won over. The stand of the petitioner was that he has to support the prosecution version. Even if the public prosecutor had moved an application for deleting his name from the list of prosecution witnesses and requested for not recording his statement, the court could still exercise the power under Section 311 Cr.P.C. to get the statement of the petitioner recorded. As far as its evidentiary value is concerned, the same could be considered at the time of conclusion of trial. 19. Hence, it is directed that the statement of petitioner shall be recorded by the court below as a court witness and the evidentiary value thereof shall be considered at the time of conclusion of trial, however, considering the stand of the petitioner before this court as noticed in the order dated 3.11.2011. Issue No. (ii) 20. It is a case in which the accused are being tried for offences under Sections 323, 325, 304 (II), 302, 34 IPC. Number of prosecution witnesses had been summoned for 28.9.2011. After recording examination- in-chief of Anil son of Jagdish Sharma, the learned court below recorded as under :- “xxxxx by Sh. Amit Wadhera, Advocate for the accused. Cross-examination deferred in the wake of an application moved by accused on the ground that Sh. P.K. Sandhir, Advocate has gone to Bhiwani and is preoccupied in a case there in connection with some other case.” 21. Similar was the position when examination-in-chief of PW2 Jagdish Sharma was recorded. 22. The petitioner was also present in court for getting his statement recorded on that day. However, on an application filed by the prosecution, the statement was not recorded as the public prosecutor claimed that the petitioner had been won over by the accused. CRM -M No. 33161 of 2011 (11) 23. The issue as to whether the court should proceed to hold the trial on day to day basis, reference to the order passed by Hon’ble the Supreme Court in Lt. Col. S. J. Chaudhary’s case (supra) would be relevant. The same is extracted below:- “By an order dated Dec. 2,1983, this Court while dismissing a petition for special leave to appeal filed against an order of the Delhi High Court refusing to grant bail to the petitioner until after examination of Ram Chaudhary as a witness, gave a direction that on the commencement of the trial, it should proceed from day-to- day. Alleging that his two Advocates are not prepared to appear in the case from day-to-day as the trial is likely to be prolonged, the petitioner has filed the present application for modification of the earlier order of this court by the deletion of the direction that the trial should proceed from day-to-day. We think it is an entirely wholesome practice for the trial to go on from day-to-day. It is most expedient that the trial before the court of a Session should proceed and be dealt with continuously from its inception to its finish. Not only will it result in expedition, it will also result in the elimination of manoeuvre and mischief. It will be in the interest of both the prosecution and the defence that the trial proceeds from day-to-day. It is necessary to realise that Sessions cases must not be tried piecemeal. Before commencing a trial, a Sessions Judge must satisfy himself that all necessary evidence is available, If it is not, he may postpone the case, but only on the strongest possible ground and for the shortest possible period. Once the trial commences, he should, except for a very pressing reason which makes an adjournment CRM -M No. 33161 of 2011 (12) inevitable, proceed de die in diem until the trial is concluded. We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his Advocate is finding it difficult to attend the court from day-to-day. It is the duty of every Advocate, who accepts the brief in a criminal case to attend the trial from day- to-day. We cannot over-stress the duty of the Advocate to attend to the trial from day-to-day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend.” (Emphasis supplied). 24. A reference to the judgment of Hon’ble the Supreme Court in State of U. P. vs Shambhu Nath Singh, (2001) 4 SCC 667 on the issue is also relevant. The relevant part thereof is extracted below:- “If a witness is present in the court he must be examined on that day. Section 309 Cr.P.C. makes it clear that once examination of witnesses has started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are “special reasons”, which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination