HC declines plea to recall prosecution witnesses in gang-rape case, says it is effort to delay trial

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Read Order: Akash Verma and another v. State of Haryana and another 

LE Staff

Chandigarh, July 8, 2021: The Punjab and Haryana High Court has declined a plea by three accused in a gang-rape case to recall the cross examination of a prosecution witness, observing that seeking to recall a witnesses who has already been duly examined is an effort to delay the trial and to fill up the lacunas.

Deciding on the matter, the Bench of Justice Jaishree Thakur said that a perusal of the statements recorded and the subsequent cross-examination reveals that the witnesses in question was put through detailed cross-examination. There is nothing on the record to show that due opportunity was denied to the petitioners from cross-examining the witnesses.

“This court on a perusal of the pleadings and the dates as mentioned concludes that the petitioners had been diligently following their case. Now seeking to recall the witnesses already duly examined is nothing but an effort to delay the entire trial and to fill up the lacunas which cannot be permitted at any cost,” the judge stated.

The accused, who belong to Haryana’s Fathehbad district, were charged for gang rape (section 376-D IPC) and criminal intimidation (section 506 IPC) in an FIR dated April 29, 2017.

The accused wanted to recall the cross examination of the investigating officer of the case in order to affirm the compromise between the survivor and the accused and also taking on account that she in her statement had not supported the version given in the FIR.

Both sides had earlier reached a compromise after it was agreed that one of the three accused would marry the survivor.

Pursuant to the settlement, the survivor resiled from her version given in the FIR and the statement under section 164 of the Cr.P.C, as did her parents.

In terms of the compromise, all the three accused were released on bail and arrangements were made for a wedding to be solemnized between one of the accused and the survivor.

However, on the day of the wedding on March 9, 2018, the accused did not turn up. Then an application was preferred on March 27, 2018 stating that she had deposed under undue influence.

The application for re-recording the statement of the survivor and her parents was allowed by Fathehbad’s Additional District & Session Judge, where the trial is going on, and affirmed right up to the Supreme Court.

The evidence of the prosecution was closed on May 2, 2019 and the statement under Section 313 of the Code (enabling the accused personally to explain any circumstances appearing in the evidence against him) was recorded by the trial court on May 22, 2019. It was argued that the petition for recalling the witnesses by the said accused has been preferred after an inordinate delay.

The judge observed that: “No doubt, an onerous duty has been cast upon the courts to ensure fair trial and to arrive at the truth, for which a witness can be recalled to testify. The scope and ambit of Section 311 of the Code is wide enough to permit recalling of a witness at any stage of the case, but the said power has to be exercised with discretion after the court is satisfied that such application is not a frivolous or a vexatious one only to delay the trial or fill up any lacunae in the same”.

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