Punjab-Haryana High Court
Mamta vs State Of Haryana And Others on 1 April, 2021CRR-30-2021 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRR-30-2021 (O&M)
Date of decision: 01.04.2021
Mamta
…Petitioner
Versus
State of Haryana and others
…Respondents
CORAM: HON’BLE MR.JUSTICE H.S. MADAAN
Present: Mr. Devender Arya, Advocate for the petitioner.
Mr. Karan Garg, AAG, Haryana.
Mr. Kehav Partap Singh, Advocate for respondent No.11.
*****
H.S. MADAAN, J.
This revision petition is directed against order dated
23.12.2020, passed by Addl. Sessions Judge, Narnaul whereby an
application U/s 311 Cr.P.C., for additional evidence filed by
complainant was dismissed, during the trial in FIR No.320 dated
27.08.2018, for offences under Sections 148, 149, 323, 325, 302, 307,
452 and 506 IPC, registered with Police Station Kanina, District
Mahendergarh. After framing of charge, the case was fixed for
evidence of prosecution, during the course of which, the prosecution
examined several witnessed including the complainant; thereafter,
statements of the accused were recorded and the case was fixed for
defence evidence, during that the accused led evidence to show that the
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complainant was on duty on 26/27.08.2018, as such, he could not
possibly be there at the spot; to rebut the evidence, the complainant
Ashwani wanted to examine the official from Joginder Memorial
Charitable Blood Bank, Rewari to show that he remained in the
hospital on 27.08.2018, which fact is fortified by receipt No.1012/18/
under donor ID No.1519 and 1520 and from CCTV footage.
This application for additional evidence was opposed by
the accused. The trial Court dismissed the application, vide impugned
order dated 23.12.2020. The operative part of the order reads as under:-
“4. It is no more in dispute that when PW6 stepped
into witness box he did not mention this important fact that
he donated blood on 26/27.08.2018 to the deceased. During
cross-examination as well he remained silent on this aspect.
This application has been moved at the stage when case has
been fixed for the defence evidence. When defence evidence
was almost concluded this application has been moved. Like
Civil matters a party cannot be allowed to take dual stand by
blowing hot and cold at same time. During prosecution
evidence complainant Ashwani remained in dole drum and
did not disclose that he infact donated blood to any person at
Rewari hospital. Video footage is not possible at this stage
because video footage could have taken within one or two
months of the incident. Incident pertains to 26/27.08.2018.
Now, after more than 2 ½ years video footage is not possible
to be produced or proved. So called blood donation evidence
is not authentic being private record, it could be procured at
back date and it bears no sanctity.
I also heard applicant in person, wherein he submitted
that in fact he was present on the spot on 26/27.08.2018. He
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submitted that he moved application to his Superior Officer
of the department. However, he could not produce any
document in this regard.
The case of applicant i.e. Ashwani seems to be
doubtful from the point of view that he in fact on
26/27.08.2018 remained in Rewari at Joginder Memorial
Charitable Blood bank, Rewari or at that time in hospital in
the same City because he remained silent when he stepped
into witness box as PW6. I agree with the contention of
defence counsel that so called blood documents attached
with the application could have been prepared at back date.
Certainly, these documents have been prepared and intended
to be produced in the evidence but for filling the lacuna in
the case of prosecution. Court cannot forget that evidence
produced in defence pertains to public record, wherein
presence of Ashwani has been shown in his attendance
register, where he was tendering service of a Mali. In these
circumstances, this court see no substance in the application
filed by prosecution u/s 311 of Cr.P.C. Consequently, same is
hereby dismissed.”
I have gone through the impugned order and I find that the
same is quite detailed and well reasoned and it does not suffer from
any illegality or infirmity, much less apparent on the face of it. The
order is certainly not perverse or against settled judicial parameters.
Section 311 Cr.P.C., deals with power to summon material witness. It
provides that the Court may, at any stage of any inquiry, trial or other
proceedings, summon any person as a witness, or examine any person
in attendance, though not summoned as a witness, or recall and re-
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examine any person already examined and it is mandatory for the
Court to do so, if evidence of such person appears to be essential for
the just decision of the case. Thus, the entire power is vested in the
Court, which of course is to be exercised in a judicious manner and not
in an arbitrary way. The power is not to be invoked to enable a party to
fill up the lacuna or gaps in its case. The trial Court has given valid
reasoning for rejecting the application and I do not see any reason to
differ with that and to interfere with the order by exercising revisional
jurisdiction. The revision petition is found to be without any merit and
is dismissed accordingly.
Anything said herein above shall not be construed as an
expression of opinion on the merits of the case.
01.04.2021 (H.S. MADAAN)
sumit.k JUDGE
Whether speaking/reasoned : Yes No
Whether Reportable : Yes No
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