FATIMA HYDER Vs. STATE OF M P

JUDGEMENT

(1.) Non-applicants 2 and 3 are facing trial under Section 302/34 I.P.C. for the alleged murder of Shakeel Hyder on 23.5.1990 near Kailash Pan Shop on main road, Sadar Bazar, Jabalpur. During the course of the trial on 20.6.199 1, Kailash Chandra (P.W.2) and Dr. D.C. Kumar (P.W.3) were examined. The same day the prosecution closed its case. Thereafter, the accused persons were examined under Section 313 of the Code of Criminal Procedure (Hereinafter the, Code). Defence examined one witness and closed its case and the case was adjourned for arguments. At this stage on 5.3.1992, the petitioner, who is the mother of the deceased, presented an application under Section 301,231 (2) read with Section 311 of the Code for recalling the aforesaid two witnesses for further examination on the ground that the then Public Prosecutor had failed to discharge his duties properly in omitting to seek Courts permission to cross-examine them notwithstanding their statements which virtually amounted to disowning of the prosecution case. A report was made against the then Public Prosecutor and the administration accepted the gist of the complaint and ordered another Public Prosecutor Shri Chittouduja to take over conduct of the case from Shri J.K. Jam. On 27.4.1992, Shri Chittoudiya presented an application under Section 231 and 311 of the Code for recalling of P.W.2, Kailash Chandra, for cross-examination. Another application was made by him on 26.9.1992 seeking recall of P. W. 3. Dr. D.C. Kumar, for cross-examination. The application presented by the present petitioner in this behalf was earlier rejected on the ground that she had no locus standi to move the court in this behalf. The defence opposed the applications made by Shri Chittoudiya on various grounds. The trial Judge vide order dated 10.7.1992 rejected these applications observing inter alia that the prosecution was free to, assail the evidence of the aforesaid witnesses in final arguments and their credibility or otherwise will be decided keeping in view the submissions made in this behalf. In this petition under Section 482 of the Code, the petitioner has challenged the correctness of the said order of the trial Judge and she is supported by non-applicant the State. Arguments heard.

(2.) The prosecution case is that on the date of the incident non-applicants 2 & 3 came to the deceased at about 10.30 P.M. when he was standing near Kailash Pan Shop. Applicant No.2 asked the deceased to accompany them. The deceased refused because his relations with non-applicant 2 & 3 were not good. On this, non-applicant No. 2 took out his Katta, shot the deceased and ran away along with non-applicant No.3. The deceased Shakeel Hyder was taken to the Police Station where he lodged the F.I.R. He was then sent to Victoria Hospital where Asstt. Surgeon Dr. D.C. Kumar (P.W.3) examined him vide report Ex.P.2 and referred him to Medical College Hospital, Jabalpur, where he succumbed to his gun shot injuries on 15.6.1990. The post-mortem report (Annex.-1) and the dying declaration recorded by an Executive Magistrate (Annex.-2) show that shakeel Hyder died of gun shot injuries. The statement of Kailash Chandra, owner of Kailash Pan Shop, was recorded under Section 161 of the Code (Annexure-3) wherein he has stated: Hindi Matter In the Court, he has given an entirely different version in his examination in chief saying that the deceased had taken out a pistol while talking to Guddan and at that very time this witness heard the shot and noticed that the deceased was injured. Notwithstanding his version being contradictory to his statement under Section 161 of the Code, the Public Prosecutor conducting the case did not seek Courts permission to cross-examine him. As was to he expected in cross- examination this witness has given a narration which is in perfect tune with the defence story that it was the pistol in the hand of the deceased which was fired accidently in his scuffle with nonapplicant, Guddan, and injured the former. Similarly doctor Kumar in his cross-examination has tried to introduce numerous facts which are not borne out from his report Ex. P-2 and which candidly go to prove the defence theory of the deceased being fatally injured by accidental shot fired from his own pistol. Notwithstanding such statement of this witness (Annex-V), the Public Prosecutor did not consider it necessary to seek Courts permission to re-examine or cross-examine this witness.

(3.) Mohanlal Shamji Soni v. Union of India and another has been relied on by the applicants counsel wherein the law on this point has been laid in these terms: Though Section 540 (Section 311 of the new Code) is, 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, A.I.R. 1991 S.C. 1346 or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.