Mahadev vs The State Of Maharashtra
2009 Latest Caselaw 130 Bom

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            IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                                           
                       BENCH AT AURANGABAD




                                                   
                 CRIMINAL APPLICATION NO. 4197 OF 2009

     1.    Mahadev s/o Rangnath Shendge
           Age-40 years, Occ-Nil




                                                  
     2.    Haribhau s/o Ganpati Narwate
           Age-3 years, Occ-Nil




                                      
     3.    Bansi s/o Reshim Mane
           Age-33 years, Occ-Nil
                      
           R/o Bhilegaon, Tq=Parli
           Dist-Beed
                     
     4.    Vinayak s/o Ganpati Narwate
           Age38 years, Occ-Nil
           Applicants No.1, 2 & 4 R/o Nimla,
           Tq-Parli, Dist-Beed                                   APPLICANTS
      


           VERSUS
   



     The State of Maharashtra                                    RESPONDENT
                                    .......

Mrs.S.S.Jadhav, Advocate for applicants

Mrs.Yotiga M.Kshisagar, APP for the State Mr.B.A.Shinde Advocate for complainant .......

[CORAM : A.V.POTDAR, J.]

DATE: 17th December 2009

ORAL JUDGMENT:

1. Rule. Rule made returnable forthwith. By consent of

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the learned counsel appearing for the parties, this application is

heard finally at the stage of admission.

2. By the present application, the applicants have

approached this Court praying to recall the order dated 10th

November 2009, by which the application filed by the applicants, to

recall P.W.-11 Shakuntala Laxmanrao Parekar, whose evidence is

recorded in Sessions Case No.85/2008 by the Ad Hoc Additional

Sessions Judge-2, Ambajogai, is rejected.

3.

Such of the facts, as are necessary for the decision of

this case, may briefly be summarized thus -

The applicants are accused in Sessions Case No.85/2008

and are in custody. This case is pending before the Ad Hoc

Additional Sessions Judge-2, Ambajogai. During the trial, evidence

of PW-11 Shakuntala came to be recorded on 20.06.2009 and

completed on the same day. It further appears that on 21 st July

2009, about a month thereafter, she directly sent one affidavit by

post to the concerned Sessions Judge contending that she was

threatened by the complainant side to give evidence and in that

manner she has deposed before the Court. It appears that this

fact, of receipt of affidavit by post, is brought to the notice of

prosecution as well as by the defense by the Judicial Officer

himself. Thereafter, 5 more witnesses are examined. The

application was moved on 9th November 2009 by the defence to

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recall the witness to test the genuineness of the affidavit, allegedly

sent by her, which is marked as Exhibit-104. It also appears that

the last witness of the prosecution was examined on 10th November

2009 and thereafter the case was closed for the statement of the

accused u/s 313 of the Criminal Procedure Code.

4. The gist of the submissions of the applicants, is that

the learned trial court has rejected the application on the ground

that after the evidence of PW-11 was over, under the provisions of

Section 311, she cannot be recalled to give further evidence. It is to

be noted that the affidavit (Exhibit-104) was directly sent to the

Court, after one month of her evidence. It is to be noted that the

contents of the affidavit (Exhibit-104) are prejudicial to the interest

of the prosecution, in such circumstances, it was for the

prosecution to move the application u/s 311 to recall the witnesses

to test the genuineness of the affidavit (Exhibit-104). Why the

prosecution has not filed application to recall the witness to test

her veracity, are best known to the prosecutor, who is conducting

the said case. However, fact remains that though the contents of

the affidavit (Exhibit=104) are prejudicial to the prosecution, the

prosecution has not preferred any application to recall the said

witness to test the affidavit, which is exhibited, without formal

proof of the same, as the contents of the affidavit (Exhibit-104) are

not admitted by either side.

5. Considering the rival submissions, it is necessary to

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consider the scope of section 311 of the Criminal Procedure Code,

which reads thus -

"311 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."

6. Considering the highlighted portion of section 311,

which speaks to recall the witness, "if his evidence appears to it to

be essential to the just decision of the case", these words are very

important. As considering the contents of the affidavit

(Exhibit-104), and the evidence given by PW-11, she appears to be

the star witness of the prosecution. If the contents of the affidavit

(Exhibit-104) proved to be genuine, then without examining or

testing the genuineness of the same, it will affect the case of the

prosecution, but if not there are chances to draw adverse inference

even against the defense. In the premise, considering the evidence

already given by PW-11 Shakuntala, in the light of the allegations

made by her in the affidavit (Exhibit-104), in the interest of justice

it is necessary to test the genuineness of the contents of the

affidavit (Exhibit-104). In the premise, it is necessary to recall

PW-11 Shakuntala. At the same time, though the witness is

recalled at the instance of defence yet an equal opportunity to be

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given to both the prosecution and defence to test the veracity of the

affidavit (Exhibit-104). In the premise, the order impugned in this

criminal application, is devoid of any substance and hence liable to

be quashed and set aside.

7. In the result, the impugned order is hereby quashed

and set aside with the direction that PW-11 Shakuntala, be

recalled to test the genuineness of the contents of affidavit

(Exhibit-104), with further direction to give equal opportunity to

the prosecution as well as to the defence to put requisite question

only limited to the contents of the affidavit (Exhibit-104) to

ascertain the correctness of the same.

8. Rule is thus made absolute, as indicate above. The

application stands disposed of accordingly. Authenticated copy of

this order be provided to either side on request. Learned APP to

inform this order to the learned AGP / DGP, who is conducting

Sessions Case No.85/2008 before the Additional Sessions Judge-2

Ambajogai, by fax.

sd/-

[A.V.POTDAR, J.] drp/criapln4197-09 Authenticated copy

(D.R.Pawar) P.A. to Hon'ble Judge