The State of Maharashtra Vs. Shrikant Bandu Bhojne - Court Judgment

SooperKanoon Citationsooperkanoon.com/1104436
CourtMumbai Aurangabad High Court
Decided OnAug-27-2013
Case NumberCriminal Revision Application No. 146 of 2013
JudgeABHAY M. THIPSAY
AppellantThe State of Maharashtra
RespondentShrikant Bandu Bhojne
Excerpt:
oral judgment: 1. heard. by consent, admitted and taken up for final hearing forthwith. by consent, calling for record and proceedings dispensed with. 2. the respondent is the sole accused in sessions case no.116/2010 pending before the sessions court, at parbhani. in that case, the first information report came to be lodged on the allegations that the respondent herein and one suresh shelke had committed the offences punishable under sections 376 of the indian penal code and 366 of the indian penal code read with section 34 of indian penal code. after investigation, the investigating agency filed charge sheet only against the respondent alleging the commission of offences punishable under sections 376 of indian penal code and 366 of indian penal code by the respondent. the charge of offences punishable under sections 376 of indian penal code and 366 of indian penal code was framed on 20.4.2011 and the case was kept for recording of evidence. after the evidence of the victim – the first witness for prosecution was recorded, the prosecution filed an application before the trial court requesting the court to frame an additional charge in the matter. the court, however, completed the recording of the evidence of the victim – pw1. after cross examination of the victim was over, prosecution filed an application (exh.11) praying that the prosecution be permitted to reexamine the p.w.1. the court, however, rejected the same by an order dated 11.08.2011. the court framed an additional charge in respect of an offence punishable under section 417 of indian penal code on 17.8.2011 against the respondent. the prosecution then made an application (exh.12) for recall of pw 1 for the purpose of re-examining her. the court, however, rejected said application by an order dated 18.08.2011. 3. being aggrieved by the orders dated 11.8.2011 and 18.8.2011 passed by the learned additional sessions judge-2, parbhani, the state of maharashtra has approached this court invoking its revisional jurisdiction and challenging the said orders. 4. i have heard mr. k.s.patil, learned app for the applicant-state. i have heard mr.s.s.rathi, learned counsel for the respondent original accused. with their assistance, i have gone through the revision application and all the annexures thereto, including the the notes of evidence of the victim as recorded in the trial court. 5. it may be recalled that the charge sheet was filed against the respondent alleging the commission of offences punishable under sections 376 of the indian penal code and 366 of the indian penal code, but in the course of the examination-in-chief itself, the victim stated that the respondent (accused) had promised her that he would marry her and that had asked her to go with him. the victim said that she had fallen a prey to the promise of the respondent and had gone with him to surat. she also stated in her evidence that respondent had sexual intercourse with her from time to time at surat under the promise of marriage. 6. apparently, in view of this evidence of the victim, the prosecution felt it advisable to make an application for addition of a charge of an offence punishable under section 417 of the indian penal code. after the court had added the said charge, prayer for recall of the victim was made. 7. undoubtedly, section 217 of the code provides for recall and examination of any witness who may have been earlier examined, after the addition or alteration of a charge. the normal rule laid down by the said section is recall of the witness for further examination and/or cross examination, as the case may be, consequent upon alteration or addition of the charge. however, the section also retains the power of the court to refuse to recall, re-summon or reexamine the witness who has already been examined, in limited circumstances:- i.e. if the court considers that recall and proposed re-examination is for the purpose of vexation, or delay, or for defeating the ends of justice. 8. coming to the facts of this case, admittedly, the application filed by the prosecution for re-examination of the victim had already been rejected by the trial court. in my opinion, therefore, under these circumstances only because a charge was added subsequently, the prosecution was not entitled to seek the recall of the victim, as a matter of right and the court could have examined whether it was a case of circumventing the previous order passed by it viz. of refusing permission to reexamine the pw 1. 9. however, the state, by this revision application, has also challenged the initial decision of the trial court not to permit re-examination of the victim. that order therefore, needs to be considered independently. 10. it appears that the public prosecutor in charge of the matter, formulated the questions that would be put to the victim in the reexamination. i have gone through the said questions which were mentioned in the application (exh.11) filed before the trial court. 11. after hearing the learned app and learned counsel for respondent, the question no.1 proposed to be asked seems to be totally unnecessary and not relevant. as regards question no.2, it appears that only the reason for not stating certain things to the police (which have been brought on record as omissions) are sought to be obtained from the victim. considering the object of re-examination, there seems to be no bar to permit this line of questioning. needless to say, that witness thereafter would be subjected to further cross examination on the basis of answers which would be elucidated on the basis of the questions. similarly, the question no.3 and question no.4 in the application (exh.11) are also basically clarificatoryand seek to elucidate some clarification from the victim with respect to the facts already deposed to by her. these questions cannot be said to be impermissible in the re-examination. 12. thus, in my opinion, though the underhand manner in which the prosecution sought to nullify the effect of order passed by the trial court refusing permission to re-examine the victim was not proper and though, the prosecution under the circumstances was not entitled to re-call the victim for reexamination only on the ground of an additional charge having been framed, still, in the first place, the trial court should not have refused permission to re-examine the victim at least for the purpose of putting questions mentioned at serial nos. 2, 3 and 4 in the application at exh.11. 13. the net result of the aforesaid discussion is that revision application needs to be partly allowed. 14. the orders dated 11.8.2011 and 18.8.2011 passed by the trial court below applications at exh.11 and exh.12, respectively, are set aside and are substituted by the following order. “the trial court shall permit the prosecution to recall the pw 1 for the purpose of re-examining her by putting the questions mentioned at serial nos.2,3 and 4 in the application at exh.11, or any other questions as may arise purely from the answers given to the said questions. needless to say that the respondent shall be entitled to cross examine pw 1 further after her reexamination.” 15. revision application is disposed of in the aforesaid terms.
Judgment:

Oral Judgment:

1. Heard. By consent, admitted and taken up for final hearing forthwith. By consent, calling for Record and Proceedings dispensed with.

2. The respondent is the sole accused in Sessions Case No.116/2010 pending before the Sessions Court, at Parbhani. In that case, the First Information Report came to be lodged on the allegations that the respondent herein and one Suresh Shelke had committed the offences punishable under Sections 376 of the Indian Penal Code and 366 of the Indian Penal Code read with Section 34 of Indian Penal Code. After investigation, the Investigating Agency filed charge sheet only against the respondent alleging the commission of offences punishable under Sections 376 of Indian Penal Code and 366 of Indian Penal Code by the respondent. The charge of offences punishable under Sections 376 of Indian Penal Code and 366 of Indian Penal Code was framed on 20.4.2011 and the case was kept for recording of evidence. After the evidence of the victim – the first witness for prosecution was recorded, the prosecution filed an application before the Trial Court requesting the Court to frame an additional charge in the matter. The Court, however, completed the recording of the evidence of the victim – PW1. After cross examination of the victim was over, prosecution filed an application (Exh.11) praying that the prosecution be permitted to reexamine the P.W.1. The Court, however, rejected the same by an order dated 11.08.2011. The Court framed an additional charge in respect of an offence punishable under Section 417 of Indian Penal Code on 17.8.2011 against the respondent. The prosecution then made an application (Exh.12) for recall of PW 1 for the purpose of re-examining her. The Court, however, rejected said application by an order dated 18.08.2011.

3. Being aggrieved by the orders dated 11.8.2011 and 18.8.2011 passed by the learned Additional Sessions Judge-2, Parbhani, the State of Maharashtra has approached this Court invoking its revisional jurisdiction and challenging the said orders.

4. I have heard Mr. K.S.Patil, learned APP for the applicant-State. I have heard Mr.S.S.Rathi, learned counsel for the respondent original accused. With their assistance, I have gone through the revision application and all the annexures thereto, including the the notes of evidence of the victim as recorded in the trial Court.

5. It may be recalled that the charge sheet was filed against the respondent alleging the commission of offences punishable under Sections 376 of the Indian Penal Code and 366 of the Indian Penal Code, but in the course of the examination-in-chief itself, the victim stated that the respondent (accused) had promised her that he would marry her and that had asked her to go with him. The victim said that she had fallen a prey to the promise of the respondent and had gone with him to Surat. She also stated in her evidence that respondent had sexual intercourse with her from time to time at Surat under the promise of marriage.

6. Apparently, in view of this evidence of the victim, the prosecution felt it advisable to make an application for addition of a charge of an offence punishable under Section 417 of the Indian Penal Code. After the Court had added the said charge, prayer for recall of the victim was made.

7. Undoubtedly, Section 217 of the Code provides for recall and examination of any witness who may have been earlier examined, after the addition or alteration of a charge. The normal rule laid down by the said Section is recall of the witness for further examination and/or cross examination, as the case may be, consequent upon alteration or addition of the charge. However, the Section also retains the power of the Court to refuse to recall, re-summon or reexamine the witness who has already been examined, in limited circumstances:- i.e. if the Court considers that recall and proposed re-examination is for the purpose of vexation, or delay, or for defeating the ends of justice.

8. Coming to the facts of this case, admittedly, the application filed by the prosecution for re-examination of the victim had already been rejected by the trial Court. In my opinion, therefore, under these circumstances only because a charge was added subsequently, the prosecution was not entitled to seek the recall of the victim, as a matter of right and the Court could have examined whether it was a case of circumventing the previous order passed by it viz. of refusing permission to reexamine the PW 1.

9. However, the State, by this revision application, has also challenged the initial decision of the trial court not to permit re-examination of the victim. That order therefore, needs to be considered independently.

10. It appears that the Public Prosecutor in charge of the matter, formulated the questions that would be put to the victim in the reexamination. I have gone through the said questions which were mentioned in the application (Exh.11) filed before the trial court.

11. After hearing the learned APP and learned counsel for respondent, the question no.1 proposed to be asked seems to be totally unnecessary and not relevant. As regards question No.2, it appears that only the reason for not stating certain things to the police (which have been brought on record as omissions) are sought to be obtained from the victim. Considering the object of re-examination, there seems to be no bar to permit this line of questioning. Needless to say, that witness thereafter would be subjected to further cross examination on the basis of answers which would be elucidated on the basis of the questions. Similarly, the question No.3 and question No.4 in the application (Exh.11) are also basically clarificatoryand seek to elucidate some clarification from the victim with respect to the facts already deposed to by her. These questions cannot be said to be impermissible in the re-examination.

12. Thus, in my opinion, though the underhand manner in which the prosecution sought to nullify the effect of order passed by the trial Court refusing permission to re-examine the victim was not proper and though, the prosecution under the circumstances was not entitled to re-call the victim for reexamination only on the ground of an additional charge having been framed, still, in the first place, the trial court should not have refused permission to re-examine the victim at least for the purpose of putting questions mentioned at serial nos. 2, 3 and 4 in the application at Exh.11.

13. The net result of the aforesaid discussion is that Revision Application needs to be partly allowed.

14. The orders dated 11.8.2011 and 18.8.2011 passed by the trial Court below applications at Exh.11 and Exh.12, respectively, are set aside and are substituted by the following order.

“The Trial Court shall permit the prosecution to recall the PW 1 for the purpose of re-examining her by putting the questions mentioned at Serial Nos.2,3 and 4 in the application at Exh.11, or any other questions as may arise purely from the answers given to the said questions. Needless to say that the respondent shall be entitled to cross examine PW 1 further after her reexamination.”

15. Revision Application is disposed of in the aforesaid terms.