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syed allham (csr)     20 September 2014

Evidence

Hi sir my lawyer has filed application under section 311 to recall evidence i.e is witness 1 & 2- girl and her mother. few months ago when they were summoned for evidence all the witnesses had arrived at the court and the so called victim my ex gf and her mother withness 2 and the complainant father were asked by my lawyer about the motive of filing a case on me under 366 A and 376, so in reply the complainant told the judge that he filed a case on me in fit of rage bcz my father did not agree for our marriage as we both were minors girl was 17 yrs 8 months and i was 19 yrs old, and when girls mother was questioned even she said the same reason behind this case and both confessed that i was like thier son and they filed a case bcz we had eloped, and atlast when the victim girl was questioned she said that she willingly had eloped with me and i did not force her for any kind of physical activity and she gave all the details about how we had eloped were did we go and were we stayed etc etc now all the witness have cross examined and the doctor- medical examiner when questioned said that the reports which he has given to the PS states that s*xual intercourse was done but with CONSENT and no forceful gesture was made on the victim, the reason my lawyer has filed the application for recall of these 2 witness is just to clear infront of the prosecutor that we had not eloped to hyderabad which will easily get me acquittal, but the witness are not turning up to the court as they have shifted their residence ,they are summoned thrice and on the last date the judge instructed the police constable to submit a application to the court if the witnesses are not coming to the court even this time, so now my worry is will i have any problemin future ? bcz of this,,, as said all the witnesses have turned hostile and the 376 does not hold any more power in my case the only thing which is worrying me is 366 A and the victim my girlfriend has already married to her cousin and they are no more interested in the case. Please advise.



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 9 Replies

Ashok, Advocate (Lawyer at Delhi)     20 September 2014

If the court has already granted you the formal permission to recall certain witnesses and if those witnesses do not turn up in spite of summons being served, the court can force their attendance in court through warrant (if needed), and moreover, in the absence of their further examination on being recalled, you can argue that their evidence should be considered as incomplete and may not be taken into consideration for evaluation of the evidence against you.

1 Like

syed allham (csr)     21 September 2014

Hi Ashok sir,

thanks for your reply.. but its the 3rd time the court has summoned the 2 evidences, judge informed the police constable to get a Panchnanama if the evidences are not turning up even this time, i am a student and just because of a mistake my life has become hell,,, even sometimes my lawyer doesnt give me proper information,,  dont know what will happen further, so sir i want to know how would you handle this case if this is the scenario.. Reply appreciated. Thanks

Ashok, Advocate (Lawyer at Delhi)     21 September 2014

From what you have written, it appears that the summons have already been served on those witnesses and that they are deliberately avoiding to remain present in the court for their further evidence.

 

Now, if the summons have not been served so far, you can request the court for using the provisions of Section 69 of Cr.P.C. (in addition to the summons already served), which is reproduced below:

 

69. Service of summons on witness by post.— (1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or personally works for gain.

(2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by a postal employee that the witness refused to take delivery of the summons has been received, the Court issuing the summons may declare that the summons has been duly served.”

 

It is clear from this provision that if the witness signs the acknowledge of the summons sent to him / her by post, then that will be considered as duly served. Likewise, if he or she refuses to receive the summons, then also the summons may be considered as duly served.

 

In addition, if the person, to whom summons are issued, is not found to be present, provisions of Section 64 and 65 of Cr.P.C. can also be used to serve the summons in their absence which shall then be considered proof of summons (i.e., by serving on the adult male member of the family, or by affixing the summons on some conspicuous part of the house).

 

Once the summons are duly served and if, in spite of 2-3 chances given, the witness does not turn up for recording the evidence, then you may request the court to exercise its power to issue bailable warrants (and, if needed, even non-bailable warrants) to the witnesses for enforcing their presence. For this purpose, see Section 87 of Cr.P.C., as reproduced below:

 

87. Issue of warrant in lieu of, or in addition to, summons.A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest

(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or

(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.”

 

 

If, in spite of all these efforts, the witness does not appear, and his / her evidence remains incomplete, then such incomplete evidence cannot be considered for proving the charges and accordingly, in such a situation, you may request the court to ignore his / her evidence. This may also help you ultimately.

1 Like

syed allham (csr)     21 September 2014

Thank you sir,  court has already sent summon twice but the complainant have shifted their house a year ago and they are not present at the address which is mentioned in the fir and other copies, hence the police have also tried to call the girls father but he is not recieving the call,,, so there is no other way to track them or to serve them the notice, so the judge has asked to submit a panchanama in the next date if the summons are not delivered to the complainants, the police person told us that they will try to call the complainants and if they are not responding then they will submit the application to the judge that the complainants have shifted the house and they are not able to get in contact, so after this what should be the course of action from my lawyer, and how can i get acquitted. Thanks sir

Ashok, Advocate (Lawyer at Delhi)     21 September 2014

If the summons have not been served so far due to change of address, the summons will have to be served at the new address. Since you have mentioned that the complainant’s father is not replying to the phone calls, it means that her father has a phone. It should be possible to get the address of her father from this phone number, irrespective of whether it is a mobile phone or a landline phone. The police can contact the mobile phone service provider for the current location of the mobile phone. Even otherwise, it should be possible for the police to find out the present whereabouts of the witnesses by making enquiries with those persons who are known to them. Once the summons are served at the new address, the procedure mentioned in my previous reply may be followed. And, in case, the summons cannot be served in the absence of the new address, the police may be asked by the court to locate the present address and then serve the summons or warrants, as the case may be.

 

If, after all possible and reasonable efforts made, the presence of the witnesses cannot be secured in court, you may request the court to treat their evidence as incomplete and follow the procedure as mentioned in my previous reply. If no contact is possible with those witnesses, the court may perhaps like to keep the case pending for some additional reasonable time. In fact, the complainant is not supposed to abandon the case in this manner, since it is ultimately her own complaint, and therefore, an adverse inference can be drawn if she does not cooperate with the court proceedings and keeps her evidence incomplete by remaining absent from court or by not updating her address even during a long and reasonable duration of time.

 

 

1 Like

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     21 September 2014

you will be acquittal from this case so no need to worry and try to finished your education

1 Like

sankar P (supervisor)     27 September 2014

Very Valuable informations & Suggestion given by LCI Experts to the Victims like us,

Many thanks,

BEst Regards,

Shankar.

syed allham (csr)     28 September 2014

Originally posted by : Nadeem Qureshi 9953809956

you will be acquittal from this case so no need to worry and try to finished your education

Sir thanks for your reply, this week on 1st of october is my court date, my father spoke to one of the constable of our police station regarding some case papers which should be taken from the pending branch, when asked about this, the constable informed that the person from pending branch told that my case file is been sent to judge for reviewing the case and the papers can only be obtained once the file is back to the pending branch, and the constable told my father that even this time the witnesses are not turning so there might be probability that the judge could take a decision on the case and asked us to bring our lawyer without any miss on the day, so sir what would be the further action from the court and how will the case go further. im very much worried sir, please help me with your valuable suggestion and also sir any thing to be worried relating to section 366 A. Thanks

AS   06 October 2014

I am sorry to hear your story bro.

I am not a lawyer , But  i have done some extensive study on 376.Rape and Gang rape.

I dont want to misguide you , my understanding says case is against you.

---biggest problem ..She was below 18 ...Dr confirmed s*x has taken place....I know and i understand that it is not a rape and  whatever you both did is definately not a rape . But law is baised.

Now even if witness turn hostile in later stage ..it might not help you.


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