Sunil Kumar Dubey vs State of Jharkhand and Another

Vikramaditya Prasad, J.—Heard the parties.

This revision application is directed against the order dated 20.9.2001 passed by Special Judge-IInd, Ranchi, in S.T. No. 105 of 1996, whereby the learned Court below allowed the application of the opposite party No. 2 to re-examine PW 7, Ram Pravesh Tewari to prove the letter said to have been written by the deceased few days prior to her death and which was only marked as ''X'', for identification.

The brief facts of the case are that an FIR was lodged under Sections 304-B and 498-A of the Indian Penal Code. There is a letter written by the victim girl. When one witness, who was the brother of the deceased was examined that letter was produced, which was earlier recovered by the police during the course of investigation, but inadvertently that letter was not marked as Exhibit and it was only marked as X for identification and, therefore, it could not be proved. Now a petition u/s 311 of the Code of Criminal Procedure was filed before the Court below for recalling witness No. 8, who was the brother of the deceased to clarify this matter.

Learned counsel for the petitioner referring a judgment reported in 2002 (1) JCR 23 JHR, has argued that u/s 311 of the Code of Criminal Procedure no document could be examined that is only related to the witness.

On perusal of the facts of that case 2002 (1) JCR 23 JHR, it appears that in this case the examination of the accused persons u/s 311 of the Code of Criminal Procedure had already taken place and then a prayer was made by the prosecution to direct the accused persons to file the original sale deed dated 25.6.1998. The learned counsel for the petitioner further submitted that Section 311 of the Code of Criminal Procedure provides power to summon material witness or examine person present for the interest of justice or for the just decision of the case. Learned counsel has also argued that if the letter is now proved then it will amount to fill up the lacuna.

It is not at all disputed that the letter in question was not on the record or some what completely a new thing has come like the sale deed in the reported case cited by the learned counsel for the petitioner. Therefore, there appears to be no illegality in the impugned order dated 20.9.2001 passed by the Court below. Besides that the revision application under Sections 397 and 401 of the Code of Criminal Procedure is not maintainable against the order passed u/s 311 of the Code of Criminal Procedure. It goes without saying that if the witness is re-examined, the Court below is directed to give ample opportunity to cross-examine him on recall.

This revision application is, accordingly, dismissed.