Prosecution witness, seeking his re-examination owing to his testimony being influenced by threats, has to establish that Prosecution Agency or Trial Court was apprised about same: P&H HC

Read Order: Kapil Kumar v. State of Punjab & Others

Monika Rahar

Chandigarh, February 16, 2022: The Punjab and Haryana High Court, while dealing with a challenge against Trial Court’s decision of dismissing the complainant’s application seeking his re-examination and the issuance of summons to two eye-witnesses whose names were dropped up by the complainant owing to alleged threats given by the accused, upheld the impugned order on the ground that the complainant could have approached the prosecution agencies or could have apprised the Trial Court of such threats before giving up the two eyewitnesses. 

The Bench of Justice Meenakshi I. Mehta did not find the above-stated explanation given by the complainant-petitioner to be plausible, cogent and fair. Also, in arriving at the above conclusion the court made reference to the Supreme Court case of Rajaram Prasad Yadav v. State of Bihar and Another 2013(3) RCR (Criminal) 726. 

An FIR was registered against the accused-respondent under Sections 323, 341, 506 r/w Section 34 IPC at the petitioner’s instance. After the presentation of the charge sheet and framing of the charges, the prosecution witnesses were summoned by the trial Court, including the petitioner who was examined as the first prosecution witness. 

In his statement, the complainant-petitioner gave up the names of two eye-witnesses, however, later the petitioner moved an application under Section 311 Cr. P.C for his own re-examination and for summoning two eye-witnesses as prosecution witnesses, while averring that he gave up these two eyewitnesses under threat given by the accused respondents. 

The Trial Court, vide its impugned order dismissed the said application and closed the prosecution evidence. The lower court however allowed the petitioner’s application seeking transfer of the case to another court. Hence, the High Court was approached by the petitioner. 

The petitioner’s counsel justified the filing of the application under Section 311 Cr.P.C. petition on the ground that the petitioner gave up the two eyewitnesses owing to the threat given by the accused/ respondents and thus, it was relevant and necessary for the proper decision of the case to allow the said application. He further contended that the impugned order also deserved to be quashed because both the said witnesses were present in the Court on that day but were not examined. 

Per-contra, the State counsel and the counsel for respondents argued that the petitioner already made depositions and he also gave up the afore-named prosecution witnesses out of his own free will and therefore, both the impugned orders of the Trial Court, were well reasoned and perfectly legal. 

The Court at the outset noted that the sole ground on which the petitioner sought his own re-examination as well as for summoning and examining the two eye-witnesses was the alleged threats given by the accused-respondent. However, this ground was not found to be plausible by the Court because the Court was of the opinion that the complainant-petitioner appeared before the competent Courts even before examining himself as a prosecution witness and thus he was not oblivious to the fact that he could have sought protection from the Police or could have apprised the Trial Court of such threat, but none of this was done. 

Further, the Court looked in the aspect of closure of prosecution witnesses by the Trial Court. In this regard, the Court showed its agreement with the Trial Court decision on the ground that the FIR in the case was registered in 2011, while the charge-sheet was filed in May of 2012. One more factor which was considered by the Court was that the prosecution failed to conclude its evidence even after obtaining numerous opportunities to do the same. 

Further, regarding the argument of non-examination of the two eye-witnesses even after their presence on the day of passage of the impugned order, the Court stated that they were not examined by the Trial Court as they were given up/ or their names were dropped by the complainant himself. 

Thus, the Court came to the conclusion that the impugned orders did not suffer from any illegality, irregularity or perversity.

The petition was thus, dismissed.