CRL.M.C./1754/2016 of ASHOK KUMAR BIND Vs STATE NCT OF DELHI

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: September 01[st], 2016

CRL.M.C. 1754/2016 & Crl.M.A. No.7416/2016

ASHOK KUMAR BIND

..... Petitioner

ThroughMr.K. Singhal, Adv.

versus

STATE NCT OF DELHI

..... Respondent

ThroughMr.Izhar Ahmad, APP for the State.SI Jagmul Singh.

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1.The present petition has been filed under Section 482 ofCode of Criminal Procedure (hereinafter shall be referred asCr.P.C.) against order dated 30.03.2016 passed by the Trial Courtwhereby the application filed by the petitioner under Section 311Cr.P.C. was dismissed.

2.The facts in brief are that the case FIR No.99/2013 underSection 302 IPC, Police Station New Delhi Railway Station wasregistered on the basis of statement made by the complainantPurushottam M.N. The complainant had stated that on 09.06.2013he along with his friend Aditya Birla had come to Delhi to giveexam of DSSSB. They both came to New Delhi Railway Station.His friend was sleeping on the bench outside S.S. Office. At about12.30 a.m., one person came and asked Aditya Birla to get up as he

had to sleep on the bench.When complainant refused, the saidperson started quarreling. In the meanwhile, that person picked upa stone lying on the gutter and hit the same on the head of Adityadue to which blood oozed out from the head of Aditya. When thecomplainant tried to catch the assailant, the complainant was alsoattacked. The complainant raised alarm. The police reached thespot and the said person, whose name was later on revealed asAshok Bind, was apprehended. Injured was taken to hospital inPCR vehicle. During treatment, Aditya expired in the hospital. Onthe basis of statement of the complainant and MLC of thedeceased, the instant FIR was registered.

3.The petitioner/accused was arrested and after completion ofinvestigation, charge sheet was filed in the Court. The prosecutionevidence commenced.During the pendency of the trial, anapplication under Section 311 Cr.P.C. was moved by the accusedfor recalling witnesses PW1, PW2, PW5 to PW8 and PW11. TheTrial Court after going through the material available on record,dismissedthesaidapplicationvideimpugnedorderdated30.03.2016.Feeling aggrieved by the dismissal of the saidapplication, the present petition has been preferred by thepetitioner/accused.

4.Arguments advanced by the counsel for the petitioner aswell as Additional Public Prosecutor for the State were heard.

5.Argument advanced by the counsel for the petitioner is thatthe witnesses which are sought to be cross-examined are materialand their cross-examination is essential. Except the complainant

(PW1), no other witness was cross-examined. It is further arguedthat the cross-examination of PW1 was very poor and relevantquestions were not asked from the said witness.Further cross-examination of PW1 is necessary for proper cross-examination.Witnesses are yet to be confronted with the statement made byother witnesses and the recovery.

6.In support of the above contentions, judgments in the case ofNatasha Singh v. Central Bureau of Investigation (State) (2013)5 SCC 741, Hoffman Andreas v. Inspector of Customs, Amritsar(2000) 10 SCC 430, Manoj Kumar & Ors. v. The State (NCT ofDelhi) (Crl.A. 638/2009 decidedby this Court on 27.03.2012),Iddar and others v. Aabida and another (2007) 11 SCC 211, U.T.of Dadra & Nagar Haveli and another v. Fatehsinh MohansinhChauhan (2006) 7 SCC 529, Mohanlal Shamji Soni v. Union ofIndia and another 1991 Supp (1) SCC 271 and Rajaram PrasadYadav v. State of Bihar and another (2013) 14 SCC 461 to pressthe contention that the Court can exercise the power of recallingthe witness at any stage and the Court has to see whether there waseffective cross-examination of witness or not.

7.Perusal of record shows that the complainant (PW1) wascross-examined at length by the counsel for the accused on04.04.2014.The ground taken by the petitioner that the earliercounsel did not effectively cross-examine the complainant, cannotbe ground to recall the witness after availing the opportunity ofcross-examination. In the considered view of this Court, when awitness has been cross-examined to the satisfaction of the defence,

he cannot be recalled again and again on the ground that newcounsel has been engaged and he has been advised to cross-examine the already cross-examined witness. Even otherwise, inthe case Nisar Khan @ Guddu versus State of Uttaranchal 2006 (9)SCC 386, it has been held that no public witness can be recalled aftera lapse of one year that too after the witnesses were examined,cross-examined and discharged.Admittedly, in the present casealso, the complainant (PW1) was examined, cross-examined anddischarged.

8.So far the other witnesses i.e. PW2, PW5 to PW8 and PW11which the petitioner sought to recall for the purpose of cross-examination are concerned, their testimony is formal in nature.These witnesses are either the police officials or the railwaybooking supervisor and the opportunity to cross-examine thosewitnesses was given to the accused. The said opportunity was dulyavailed but, despite the same, the witnesses were not cross-examined. After duly availing the opportunity to cross-examine,now the petitioner cannot claim that the said witnesses be recalledfor cross-examination as he was not advised properly by the earlycounsel.Apparently, the prosecution evidence has already beenclosed on 16.05.2016 and even the statement of the accused underSection 313 Cr.P.C. was recorded on 14.07.2016 but he opted notto adduce any evidence in his defence. Thus, the judgments reliedupon by the petitioner as mentioned above are of no assistance tohim.

9.In view of the above mentioned facts and circumstances, this

Court does not find it proper to recall the witnesses PW1, PW2,PW5 to PW8 and PW11.Consequently, the present petition isdismissed.

10.Application Crl.M.A. No.7416/2016 is also disposed of.

SEPTEMBER 01, 2016dd

(P.S.TEJI)JUDGE