Cheeku alias Sohan Singh and another vs State of M.P.

Mrs. Indrani Datta, J.

Applicants by Shri Sushil Goswami Advocate.

Non-applicant-State by Ku. Nutan Saxena P. P.

With the consent of the parties the matter is heard finally at motion stage.

Applicants have preferred this revision u/s 397 and 401 of Criminal Procedure Code against the order dated 29-7-2009 passed by First ASJ, Gwahor in Sessions Trial No. 216 of 2007 by which, application filed by present applicants for recalling witnesses Narendra was dismissed.

It is alleged that applicants are facing Sessions Trial No. 216 of 2007 in the Court of First ASJ Gwalior registered at PS Gola Ka Mandir for offence punishable under sections 302, 307, 147, 148 and 149 of Indian Penal Code. The case was fixed for prosecution evidence and out of two seizure witnesses, Vrindavan and Narendra, only one witness Vrindavan has been examined by the prosecution and other witness Narendra was not examined. Prosecution has also not examined Manju and Urmila wife and Mother of deceased whose statements were recorded u/s 161 of Criminal Procedure Code. The present applicants have filed one application u/s 311 of Criminal Procedure Code for issuing a direction to the prosecution for getting examined Manju, Urmila as well as seizure witness Naresh and that application was rejected by the trial Court, hence, this revision.

It is contended on behalf of the applicants that these witnesses are important and their testimony is very essential for just and proper disposal of the case, hence, the trial Court was not right in rejecting their application. Therefore, that order is to be set-aside and prosecution be directed that these witnesses whose evidence is necessary for just decision of the case be called for adducing evidence in trial Court.

Perused the documents on record.

Section 311 of Criminal Procedure Code 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 re-call 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.

A bare reading of section makes it clear that in order to enable the Court to find out the truth and render a just decision, Court by exercising its discretionary authority at any stage of enquiry, trial or other proceedings can summon any person as witness or examine any person in attendance though not summoned as a witness or re-call or re-examine any person already examined who are expected to be able to throw light upon the matter in dispute.

It is apparent that in the present case, all the material witnesses alleged to be eye witnesses of the incidence Yuvraj (PW1) and Umesh Yadav (PW7) and one of the seizure witnesses concerning seizure have been examined by the prosecution as mentioned in the impugned order. It is therefore, not necessary to direct prosecution to examine all the remaining witnesses also. More over, the case is fixed for defence witnesses and the accused is at liberty to examine those witnesses which are not examined by the prosecution as defence witnesses and as such, no prejudice will be caused to accused as he would get an opportunity to examine those witnesses as defence witnesses. Hence, directing prosecution to examine those given up witnesses as prosecution witness is not justified.

Hence, this revision being devoid of any merits is dismissed accordingly.