Bombay High Court
Dagadu S/O. Rajaram Kolhe And Anr vs The State Of Maharashtra on 29 February, 2016
Bench: M.T. Joshi
1 WP192.2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 192 OF 2016
1. Dagadu s/o Rajaram Kolhe,
Age : 62 years, Occu. Agriculture,
R/o. Village Rahati, Taluka: Limbgaon,
District : Nanded.
2. Sanjay s/o Dagadu Kolhe,
Age : 26 years, Occu. and R/o. As above. .. Appellants
Vs.
The State of Maharashtra,
through the Police Inspector,
Limgaon Police Station, Limbgaon,
Taluka : Limbgaon, District : Nanded. .. Respondents
........
Mr R. S. Deshmukh, Sr. Advocate for the appellants
Mr A. R. Kale, APP for respondent/State
.......
CORAM : M.T. JOSHI, J.
DATE : 29/02/2016
ORAL JUDGMENT:
. Rule. Rule made returnable forthwith. Heard
finally with the consent of the parties.
2. Aggrieved by the order dated 05.02.2016 passed
by the learned Sessions Judge under the provisions of
Section 311 of the Code of Criminal Procedure, thereby
directing to examine witness Raju s/o complainant
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Vaijnath Kolhe, claiming to be eye-witness, the original
accused are before this Court.
3. The prosecution case would show that on
24.06.2014 there was altercation between the deceased
and the present petitioners in the noon near a field.
In the following night, the dead body of the deceased
was found in the field. In the circumstances, on the
complaint of P.W. 3 - Vaijnath, son of the deceased,
crime came to be registered.
4. During the investigation, the statement of said
Raju was not recorded. The deposition of the complainant
was recorded by the learned Additional Sessions Judge as
P.W. 3 on 17.11.2015. After examination of some more
witnesses, out of which as some of the witnesses did not
support the prosecution, the State filed an application
at Exh. 43 under Section 311 of the Code of Criminal
procedure. It was claimed by the State that, at the
time of the commission of the crime, one child witness
namely; Raju was present at the time of the incident.
The Investigation Officer, however, did not record his
statement and therefore it is necessary to examine the
said witness.
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5. The petitioners opposed the application
contending therein that there is nothing on record to
show that the said witness is eye-witness and there is
absolutely no reason to come to the conclusion from the
statement of any of the witnesses that said Raju was
present at the time of occurrence.
6. The learned Additional Sessions Judge, however,
concluded that there would be no prejudice to the
petitioners as they can very well cross-examine him. It
was further observed that, the prosecution should not
suffer for the fault of Investigating Officer and that
it was expedient for the just decision of the case to
call the said witness and therefore the said application
was allowed.
7. Mr. R. S. Deshmukh, learned counsel for the
petitioners, points towards the fact that, none of the
statement of any of the witnesses as well as the
deposition of the complainant recorded before the Court
would show that said Raju was eye-witness to the said
incident.
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8. On the other hand, learned APP points towards
the Statement of the witnesses, which would show that,
at the time of filing of the complaint said Raju i.e.
child of the complainant has accompanied him to the
Police Station.
9. In the application at Exh. 43, the State has
contended that, at the time of commission of crime one
child witness namely; Raju was present. He has seen the
incident and the complainant P.W. 3 has deposed about
his presence at the time of incident. The deposition of
complainant however would not show that child Raju was
present at the time of the commission of offence. The
deposition would show that when the complainant and all
others went to the field, they found the dead body and
at that time his son i.e. Raju was there.
10. If all these facts are taken into consideration
and when the deposition of the complainant also would
not show that at any time it was disclosed to him that
his son Raju was eye-witness to the said incident,
fishing and roving enquiry by examining the said Raju
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would be nothing but filling up of lacunae in the
prosecution case. In that view of the matter, the
following order.
ORDER
(I) The Writ Petition is hereby allowed.
(II) The order dated 05.02.2016 passed by the
learned Additional Sessions Judge, Nanded below
Exh. 43 in Sessions Case No. 108/2015 thereby
the said application came to be allowed by
summoning the child witness namely; Raju, as
prosecution witness, is hereby set aside.
Instead the said Application Exh. 43 is
dismissed.
11. Rule is made absolute in the aforesaid terms.
[M.T. JOSHI]
JUDGE
sgp
