Sakaldeo Singh Vs. State of Jharkhand and anr. - Court Judgment

Excerpt:
code of criminal procedure, 1973 - section 311--indian penal code, 1860--sections 324, 302/34 and explosive substances act, 1908--sections 3 and 4--explosion of bomb--injured died--examination of witnesses--one of the witnesses had seen the occurrence but the prosecution could not examined him because lack of foresightedness--name of such witness described at the early stage of case--his evidence appears to be essential for the end of justice--court can and ought to examine a witness at any stage whenever it considers the evidence essential even after closure of the prosecution and defence--since evidence of such witness found to be essential for arriving at the correct conclusion of case--held : he should be examined. - motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k......orderdeoki nandan prasad, j. 1. this criminal revision has been filed against the order dated 20.11.2002, whereby the learned additional sessions judge rejected the petition under section 311 of the code of criminal procedure for examination of a witness in connection with sessions trial no. 70/2000 arising out of g.r no. 624 of 1998 registered under sections 324, 302/34 of the indian penal code and 3/4 of the explosives substance act. 2. short fact of the case as alleged that one vishwanath singh while returning from the call of nature the accused devendra singh alongwith other accused persons came there and devendra singh threw a bomb on him. the informant raised halla. vishwanath singh sustained injury due to explosion of the bomb. in the meantime, accused persons fled away. later on.....

Judgment:
ORDER

Deoki Nandan Prasad, J.

1. This criminal revision has been filed against the order dated 20.11.2002, whereby the learned Additional Sessions Judge rejected the petition under Section 311 of the Code of Criminal Procedure for examination of a witness in connection with Sessions Trial No. 70/2000 arising out of G.R No. 624 of 1998 registered under Sections 324, 302/34 of the Indian Penal Code and 3/4 of the Explosives Substance Act.

2. Short fact of the case as alleged that one Vishwanath Singh while returning from the call of nature the accused Devendra Singh alongwith other accused persons came there and Devendra Singh threw a bomb on him. The Informant raised halla. Vishwanath Singh sustained injury due to explosion of the bomb. In the meantime, accused persons fled away. Later on the injured died due to said injuries.

3. The police investigated into the case and submitted charge-sheet against the accused persons. Prosecution examined the witnesses and after closing of the prosecution case, a petition under Section 311, Cr PC was filed for examination of Chhotan Mahto. who is said to be the eyewitness. The said petition was rejected by the order impugned. Hence, this revision.

4. The learned counsel, appearing on behalf of the petitioner submitted that because the Informant, Rajendra Singh already died within the period of trial, whose evidence could not be recorded and there is a specific averment made in the fardbeyan that Chhotan Mahto had also seen the occurrence but the prosecution could not examine him because of lack of foresightedness. It is further submitted that the prosecution may be given one more chance for examination of Chhotan Mahto as his evidence is essential to arrive at a correct conclusion of the case as well as the defence would also get opportunity to cross examine him at length.

4. On the other hand, the learned counsel appearing on behalf of the opposite party No. 2 contended before me that the prosecution failed to examine the said witness earlier, even though one more petition under Section 311, Cr PC was filed and now the prosecution wants to fill up the lacuna in the prosecution, which cannot be allowed. It is also submitted that Chhotan Mahto has not been examined by the Investigating Officer and as such his evidence is not essential for deciding the case. It is further submitted that prosecution has filed this petition under Section 311, Cr PC only to linger the disposal of the case.

5. From perusal of the FIR, it is apparent that Chhotan Mahto has been named at the first instance by the informant claiming to had seen the occurrence. It is clearly the laches on the part of the Investigating Officer, who had not recorded the evidence of Chhotan Mahto. Since, the name of Chhotan Mahto had been described at the early stage of case and as such his evidence appears to be essential for the ends of justice. It is true that he has not been examined under Section 161, Cr PC by the Investigating Officer. However, that matter is left open for deciding by the trial Court as to what will be the evidenciary value of the said evidence, but the defence would also get opportunity to cross examine the said witness at length.

6. Section 311 of the Code of Criminal Procedure reads as under :

'Power to summon material witness, or examine person present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.'

7. In the mandatory part of the Section, the paramount consideration is for doing of justice to the case, the Court can and ought to examine a witness at any stage whenever it considers the evidence essential even after closure of the prosecution and defence. The second petition under Section 311, Cr PC, if evidence appears to be essential to the just decision of the case is not prohibited. It is true that such petition should be considered and the power under Section 311, Cr PC be exercised very cautiously and judiciously.

8. As it had been discussed above, Chhotan Mahto has already been named by the informant (now dead) at the very initial stage of recording fardbeyan and if Chhotan Mahto was not examined by the Investigating Officer, it was entirely due to laches and lack of foresightedness of the Investigating Officer, for which the prosecution cannot be thrown away entirely or it cannot be held non-suited. Moreover, as discussed above, the defence would get an opportunity also for cross-examining the said witness. So, question does not arise of any prejudice by the accused persons/defence.

9. Since, the evidence of Chhotan Mahto appears to be essential for arriving at the correct conclusion of the case and for the ends of justice, it is desirable that he should also be examined. In this view of the matter, I find merit In this application, which is allowed. The trial Court is directed to give one more chance to examine Chhotan Mahto only and the defence would also get opportunity to cross-examine him and thereafter the trial Court will proceed with the case after closing the same and dispose of the case in accordance with law. Consequently, the order Impugned dated 20.11.2002 is set aside.