Ayush Nirmal Pugaliya vs State of Maharashtra

These appeals were part-heard. Today, we re-started the hearing of these part-heard appeals. On 26th of February, 2015, this Court had made an order on the application that was filed by the prosecution i.e. Criminal Application (APPA) No. 141 of 2015 in Criminal Appeal No. 391 of 2013 asking the learned Principal District and Sessions Judge, Nagpur in exercise of powers under section 391(1) and (2) of the Code of Criminal Procedure to record additional evidence for the reasons stated in said order. That order was passed because this Court found during the course of hearing that the learned trial Judge had granted liberty to the defence Counsel to put the questions in respect of the omissions in the depositions of PW 4 Shubham Ashok Baid and PW 5 Raidam Ravi Kishan-Puriya directly to the Investigating Officer PW 31 Sunil Jaiswal, instead of putting those omissions to the witnesses PW 4 and PW 5 first. The omissions were never put to those two witnesses. Pursuant to the aforesaid order directing recording of additional evidence, learned Principal District and Sessions Judge recorded the additional evidence of PW 4 Shubham Ashok Baid and PW 5 Raidam Ravi Kishan-Puriya and PW 31 Sunil Jaiswal since in our view the exercise of putting omissions to the witnesses, PW 4 Shubham Ashok Baid and PW 5 Raidam Ravi Kishan-Puriya first should have been undertaken and thereafter to the Investigating Officer. We have seen the additional evidence of the witnesses recorded by the learned Principal District Judge pursuant to the aforesaid order dated 26th of February, 2015. We commenced the hearing.

Referring to the evidence of PW 31 Sunil Jaiswal that was recorded earlier i.e. before remand order, in relation to the omissions put to him about PW 4 and W 5, Shri Rizwy, learned Counsel appearing for the appellant/accused, argued that he is entitled to read that evidence of PW 31 Sunil Jaiswal, Investigating Officer, originally recorded in relation to the omissions evidence of PWs 4 and 5. As against this, Mr. R.M. Daga, learned Special Public Prosecutor made a submission that the originally recorded evidence in relation to the omissions for which remand order was made cannot be read as the same was found by this Court contrary to the practice and procedure. According to him, additional evidence of PW 31 Sunil Jaiswal, I.O., about omissions alone can be read. This being the controversy, we frame the following question of law and ask the learned Counsel for the parties to address the same tomorrow.

QUESTION

"Whether the evidence of PW 31 Sunil Jaiswal, Investigating Officer, originally recorded by the trial Judge for proving omissions in the evidence of PWs 4 and 5 which were admittedly put without being put to PWs 4 and 5 and in the wake of the recording of additional evidence for the reasons stated in the orders dated 25th/26th of February, 2015, the defence or the appellant could be allowed to rely upon the cross-examination of PW 31 Sunil Jaiswal, originally recorded in relation thereto i.e. the omissions in the evidence of PWs 4 and 5 put to PW 31 Sunil Jaiswal or defence could be allowed to refer to the additional evidence on further cross-examination only?.

Steno copy of this order be furnished to the parties.