Office Notes vs Mr. S.B. Ahirkar
2013 Latest Caselaw 49 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               NAGPUR BENCH : NAGPUR.




                                                                                                    
                                                         
                                Criminal Revision No.198/2013
     (Chandrashekhar Vinayak Wargane .vs. The State of Maharashtra through its PSO 




                                                                           
                              P.S. Mangrul-Dastagir, Dist. Amravati) 


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    Office Notes, Office Memoranda of Coram,
    appearances, Court's orders or directions                     Court's or Judge's orders.
    and Registrar's orders 
                       Mr. A.B. Mirza, Advocate for Applicant.
                       Mr. S.B. Ahirkar, APP for Respondent.




                                                             
                       CORAM : P.D.KODE, J.

DATED : OCTOBER 19, 2013

1. Heard.

2. Admit. Considering the nature of the controversy involved and order proposed to be passed thereon, calling of the record and proceeding is

dispensed with. Mr. S.B. Ahirkar, learned APP appears

for the respondent by waiving service.

3. By this application in revision, the sole accused facing the trial for offence of murder of his wife

in the Sessions Court at Amravati in Sessions Trial No. 32 of 2012, questions the correctness, legality and propriety of order dated 6.8.2013 allowing the prosecution application to summon the Police Witness

ASI Mohd. Mustafa of Sewagram Police Station, Wardha.

4. Mr. A.B. Mirza, learned counsel for the applicant submitted it is not in dispute that charge in the said trial was framed on 04.04.2012 and during the course of the trial, the prosecution examined as many

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as 10 witnesses and closed the oral evidence on 22.03.2013 by filing a pursis Exh.75.

5. It is submitted that during the course of the trial, the witness Mohd. Mustafa was earlier summoned

but for the reasons known to the prosecution, he was not examined. It is urged that the same gave definite indication to the accused/applicant that prosecution had

given up the said witness and would not be examining him at the trial.

6. Mr. Mirza contended that thereafter the

accused was examined under Section 313 of the Cr.P.C. and thereafter the applicant examined the witnesses in

support of his defence and the matter was posted for the arguments. It is submitted that thereafter the matter

was adjourned for one occasion and posted on 01.08.2013 for the arguments. On the said date, the prosecution preferred the application for summoning the

said witness whose examination they had given up during the course of the trial.

7. It is submitted that allowing to adopt such a procedure and particularly further prosecution evidence after the defence was disclosed would be highly

prejudicial and would be affecting the right of the applicant to have a fair trial. It is submitted that the prosecution application fails to disclose any cogent reason for not examining the said witness on earlier

occasion and as such gives a reason to believe that the examination being intended for filling up the lacuna in the prosecution case. It is thus contended that allowing such examination of a witness after the matter was posted for arguments being prejudicial, cannot be

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legally sustained and be quashed and set and aside.

8. Mr. S.B. Ahirkar, learned APP countered the

aforesaid submissions by stating that in said case the applicant is facing the charge of having committed the

murder of his wife by pouring kerosene on her body and setting her ablaze. It is submitted that after the said incident the victim was admitted to Kasturba Hospital

Sewagram, Wardha and at said place in all four dying declarations of the victim were recorded, three by the Police personnel and one by the Executive Magistrate.

The learned APP submitted that the said witness sought to be now examined has recorded one of the dying

declarations of the deceased. The learned APP further urged that in order to determine the truthfulness of the

prosecution case regarding the victim having made a dying declaration implicating the applicant, the prosecution was duty bound to place all the dying

declarations before the Court. It is urged that such a material could enable the Court to properly determine

truthfulness of the prosecution case. The learned APP submitted that merely because the said witness was dropped for some reason or even assuming negligently,

the same would not debar the prosecution to make such a prayer at a later stage as such a prayer was made admittedly before hearing the submissions of both the sides and before the delivery of the judgment. The

learned APP submitted that allowing of the said application would not cause any prejudice to the accused as he would be getting further opportunity to contest evidence proposed to be adduced through said witness by cross-examining the witness and so also

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adducing the evidence in rebuttal, if any, if he desires. It is thus submitted that the order passed by the trial

Court does not suffer from any incorrectness, illegality, impropriety and on the contrary the same is for the

purposes of having all the best possible evidence regarding the relevant issue before the Court. The learned APP thus prayed for dismissing the application in

limine.

9. After giving thoughtful considerations to the submissions advanced by the parties, there appears

substance in the submission canvassed by the learned APP. It is indeed true that the prosecution at the earlier

phase of the trial has given up the said witness and has sought the examination of the said witness at belated

stage i.e. after the defence evidence was over. However, it is also well settled that a criminal trial is voyage for discovery of the truth and though they are

required to be conducted as per the procedure prescribed for such a trial, still the procedure being for

guiding both the parties receiving fair and equal opportunity, the violation of the procedure, if any, occurred and not causing prejudice to the other side,

then merely because of such a violation, the best evidence regarding the relevant issue cannot be allowed to be kept away from the Court.

10. Now examining the events occurred in the

trial in question and issue involved and the grievances made, it appears extremely difficult to accept that merely because the prosecution had given up the witness at an earlier stage, the same can be construed as a bar for allowing the request to examine him at a

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later stage or even after the defence witnesses were examined. By the aforesaid it is not intended to convey

that the prosecution is at a sweet will to examine the prosecution witnesses at any stage and it is only

intended to convey that in fit cases considering the circumstances pertaining to the concerned case, such an examination if it is likely to cause advancement of

justice, can be upheld.

11. Now taking into consideration proper perspective, two further stages reached in the said trial

i.e. the examination of the accused and leading the evidence of the defence witnesses by themselves cannot

be said to be an obstacle for not acceding with the said request. Such a conclusion is inevitable as the

examination under Section 313 of Cr.P.C. being confined only for the purposes of affording an opportunity to the accused persons to explain incriminating circumstances

and since such an opportunity can be given after examination of the said witness, the same can never be

said to be an impediment for not acceding with the request.

12. Now with regard to the second obstacle

pointed out of the accused having entered upon his defence and having adduced the evidence in support of it, though primarily appears to be an impediment, for allowing the said request after seeded thought, the

same also does not appear to be a sound ground for not allowing the said request. After carefully considering the procedure contemplated for criminal trials and particularly that for session trial, it can be said that the defence taken by the accused persons at the trial and

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the evidence sought to be adduced in support of the same, as contemplated under the said procedure, being

a truthful defence and is not any articulated defence. Having regard to the same, merely because the accused

has disclosed his defence would be again no sound ground for negating such a request which is integrally connected with the placing before the Court all material

evidence relevant to issue.

13. Resultantly, examining the issue involved in the matter, it is extremely difficult to accept that the

order sought to be assailed suffers from any incorrectness, illegality or impropriety for the reasons

canvassed on behalf of the applicant or even otherwise. Hence, there appears no merits in the application

preferred and the same is dismissed with the clarification that after examination of the said witness, it will be necessary for the Court of Session to complete

the gamut of the trial in accordance with the procedure i.e. giving of an opportunity to the applicant to explain

the circumstances, if any, in an evidence proposed to be adduced through the evidence of the said witness, as well as giving him an opportunity to lead an evidence in

rebuttal regarding the said evidence permitted to be adduced.

14. Application in revision stands disposed of in the aforesaid terms.

JUDGE

halwai