Satya Prakash v. State

ORDER o/o

20.10.2011 CrI. M.A. No. 12422/2011 (Exemption) Allowed, subject to all just exceptions. Crl. Rev. P. 468/2011 & Crl. M.A. No. 12423/2011 (Stay) By this petition the Petitioner seeks to recall the witnesses PW4 Pramod Kala and PW5 Ramadhar Verma, the Complamant and the shadow witnesses. An applicationwas filed by the Petitionerbeforethe learnedSpecial Judgewhichwas dismissedon accountofthe factthat all the witnesseshave been cross-examinedby the accused and since there was a change in the counsel on that pretext the applicationwas filed on 5'^ February, 2011 CRL.REV.P. 468/2011 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. praying for recalling of PW8 to PW12 and PW3 for further cross examination. The said applicationwas allowedvide order dated 1^' March, 2011 and thereafteran applicationwas moved statingthat in fact PW2 was required to be recalled instead of PW3 which was written in the said applicationinadvertently.Eventhis applicationwas allowed. Now the Petitioner wants recalling of PW4 and PW5. As per the learned counsel for the Petitioner the reason for recalling of PW4 and PW5 is that some new facts regardingthe presenceof PW2 in the school at the relevant time of raid and regardingtaking of original acquaintanceRole Register have come inthe cross-examinationofPW2 and PW6 whichhave to be putto thesewitnesses,that is, PW4 andPW5. I have heard learned counsel for the Petitioner. The defence was givenampleopportunityto cross examinethe witnesses. They were further recalled for cross examination. This process cannot be continued indefinitely.PW2 was reexaminedon 16*'^ March, 2011 and PW6 on 27^*^ May, 2011. However, the Petitionerfiled this applicationonly on ll"" August, 2011 when the case was listed for recordinghis statementunder Section 313 Cr.P.C. The law on the point is well settled that in an applicationunder CRL.REV.P. 468/2011 V ^ Section311 Cr.P.Crecallingofa witnessis not to be allowedto fill in the lacunaeofeitherside but for justdecisionofthe case. InHanumanRam v. State ofRajasthan,2008 (15) SCC 652 theirlordshipswhile dealingwith a case where the witnesses had already been cross-examinedonce and an applicationwas moved by the counsel for the Appellantfor recallingof witnessesin orderto confrontthem withtheirpreviousstatements,set aside the orderofrecallingofwitnessespassedby the High Courtobservingthat sufficientopportunityhad already been granted to the Appellantstherein when they were cross-examinedfor the first time. In the case at hand, the witnesseshave not only been cross-examinedonce but mostofthe witnesses reexamined. Thus, the Petitionerswere granted sufficientopportunityto cross-examine the witnesses. In such a situationI do not find any infirmityin the order of the learnedTrialCourtdecliningthe permissionto recallPW4 and PW5. I find no meritin the petition.Petitionand applicationare dismissed.

MUKTA GUPTA, J. OCTOBER 20, 2011 'vn' CRL.REV.P.468/2011 ^

•( I / 42# $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + ' CI^.REV.P. 468/2011 SATYAPRAKASH Petitioner Through: Mr. Vikas Jain, Advocate. versus STATE Respondent Through: Mr. Manoj Ohri, APP with SI Anil Kumar, PS A.C. Branch. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA