Defence Counsel Must Remain "Completely Awakened" During Cross-Examination, S.311 CrPC Not Meant To "Cure Defects": Punjab & Haryana HC

The Punjab and Haryana High Court has made it clear that Section 311 CrPC, which makes provision for recall of material witnesses, is not meant to "cure defects" in the defence and thus, the defence counsel must remain "completely awakened" during cross-examination of witnesses.The observation was made while dismissing a petition seeking to recall two prosecution witnesses for further cross-examination for putting exculpatory suggestions to them.The High Court noted that in the proceedings which occurred through video conferencing, the defence counsel was assisted by the accused. Therefore, if certain suggestions with respect to the penal incident which remained unmeted to them were allowed to be put now, by allowing the recall application, it would amount to giving an opportunity to the defence to cure its omissions/ invent fresh evidence, besides unnecessarily harassing the witnesses.The bench comprising Justice Sureshwar Thakur further added that if the defence desires, it can lead defence evidence after termination of the proceedings under Section 313 of CrPC. The present petitioner is an accused under Section 302 of IPC. The reason provided in the recall application was that during the course of the cross-examination of PW-2, she did not initially identify the accused, through video conferencing and subsequently she recognized the accused.The defence counsel, in the same application, also asked for the re-examination of PW-2 due to the reason of his lack of communication(s) or inability to interact with the accused, for certain material which was necessary to enable the defence to efficaciously carry forth its defence. After considering the rival submission of the parties, the court noted that as far as the prayer in the instant petition is concerned, it is completely rudderless, and, thereby declined for the reason that the defence counsel was assisted by the accused in the proceedings which occurred through video conferencing.The court noted that if the above permission is granted then it would lead to an undesirable consequence since the defence through this endeavour will try to improve earlier defect. Therefore, his subsequent awakenings from slumber would obviously, as stated above become, an impermissible recourse, to undo all the omissions which he earlier made, while putting exculpatory suggestions to the witnesses concerned. If he so desires, he can lead defence evidence after termination of the proceedings under Section 313 of Cr.P.C. Finding the above petition sans merit, the court dismissed the same and affirmed the impugned order. Case Title : Raman Kumar v. State of Haryana and AnotherCitation:2022 LiveLaw (PH) 241 Click Here To Read/Download Order

Defence Counsel Must Remain "Completely Awakened" During Cross-Examination, S.311 CrPC Not Meant To "Cure Defects": Punjab & Haryana HC

Drishti Yadav

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