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2003 DIGILAW 2756 (ALL)

MRITUNJAY SHUKLA v. STATE OF U P

2003-11-21

K.N.OJHA

body2003
K. N. OJHA, J. Instant revision has been preferred against the order dated 14-10-2003 passed by the II Additional Sessions Judge/fast Track Court, Mirzapur, in S. T. No. 320 of 2000, State v. Ram Ji, under Section 302 IPC, police station Chilh, district Mirzapur, by which the application of the revisionist-accused for summoning Smt. Israwati, Ashish and Smt. Manorma and doctor as prosecution witness was rejected on the ground that the prosecution cannot be compelled to examine any witness. 2. Heard Sri Kameshwar Singh, learned counsel for the revisionist and the learned AGA. The revision is being disposed of finally at the admission stage. 3. The impugned order dated 14-10-2003 passed by the learned II Additional Sessions Judge/fast Track Court, Mirzapur, shows that it is a murder case in which 10 witnesses were examined by the prosecution. When the statement of 10th witness Kailash Srivastava was over, the accused moved an application on 1-9-2003 to summon and examine Ashish, Smt. Israwati, Smt. Manorma and the doctor as prosecution witnesses. 4. The learned Sessions Judge rejected the application on the ground that the prayer was not being made by the State Counsel of the Court because the State Counsel had examined the witnesses and the prosecution does not want to examine more witnesses on this point. Thus in this revision the point of law involved is as to whether prosecution can be compelled to examine more witness on which it has examined some witnesses and in its opinion there is no need to examine more witnesses or to multiply the number of the witnesses. 5. The learned counsel for the revisionist has cited 1999 Cri. LJ 1955, Govind Ram v. State of U. P. and others, in which it has been held by this Court that the Court is duty bound to summon material witnesses and non-examination of material witness is improper. Another ruling cited by the revisionist is 2001 (1) JIC 279 (All) : 2000 (41) ACC 644, Imamuddin and others v. State of U. P. , in which it has been held by this Court that a person was witness of the fact in respect of occurrence, dying declaration and preparation of site plan, he was a material witness to be summoned and examined. 6. 6. The revisionist has also relied on 1998 (1) JIC 1098 (All) : 1998 (37) ACC 573, Lakshmi Shanker v. State of U. P. , in which it has been held by this Court that if it appears to be essential for just decision of the case, Court is duty bound to examine such witness to arrive at the truth and do justice between the parties. 7. The revisionist has also placed reliance on the order dated 24-3-2003 passed by this Court in Criminal Revision No. 822 of 2003, Ramakant Dubey v. State of U. P. and another, in which it is held that if a statement under Section 164 Cr. P. C. is being used against the accused, the Sub-Divisional Magistrate should be summoned so that the accused may get opportunity of cross-examination of the Sub- Divisional Magistrate. 8. Thus the rulings cited by the learned counsel for the revisionist show that if a witness is material one, he should be examined in the case of prosecution. 9. The learned AGA has cited 2002 (1) JIC 98 (SC) : 2002 (44) ACC 1025 (SC), Shailendra Kumar v. State of Bihar and others, in which it has been held by Honble Apex Court that if it appears essential to the just decision of the case a material witness may be summoned. In this case after examination of two or three fact witnesses the learned Sessions Judge had closed the evidence of the prosecution on the ground that the State Counsel had not made prayer for examining any other witness. When later on prosecution filed an application, it was allowed. The accused challenged the order by filing criminal revision that earlier order could not be recalled. It was held by Honble the Apex Court that the accused wanted to frustrate the prosecution by unjustified means and it appears that by one way or the other the interest was not taken by the Court or the Public Prosecutor, while it was the duty of the Sessions Judge to issue summons to the investigating officer to keep the witness present. Thus it was held that if just decision cannot be made and trial cannot be said to be complete because some of the material witnesses have not been examined then the witnesses should be summoned. Thus it was held that if just decision cannot be made and trial cannot be said to be complete because some of the material witnesses have not been examined then the witnesses should be summoned. But the learned AGA has submitted that in this case as many as 10 witnesses have been examined by the prosecution including eye-witnesses. If the prosecution thinks that more eye-witnesses are not required, the number of the eye-witnesses is not required to be multiplied. 10. In AIR 1957 SC 614 , V. Thevar v. State of Madras, it has been held by Honble Apex Court that no particular number of witness is required for the proof of any fact. "evidence has to be weighed and not counted" is well recognized maxim. If the legislature were to insist upon plurality of witnesses, the cases where the testimony of a single witness only could be available in proof of the crime would go unpunished. In such circumstances the discretion of the presiding officer comes into play. The matter thus depends upon the circumstances of each case. Thus when the prosecution has examined some fact witnesses and in its opinion there no need to multiply its witnesses, the prosecution cannot be compelled to examine all those witnesses whose names find place in the charge-sheet for whom the accused prays for being examined. 11. The learned counsel for the revisionist has submitted that the Court can summon any witness under Section 311 Cr. P. C. The Court has to exercise inherent power under Section 311 of Cr. P. C. to serve the cause of justice. It gives wide discretion to the Court to act as exigencies of justice require. If the Court thinks it proper that the witnesses, who have been examined by the prosecution have stated on all points and there is no need to examine more witness on those points, the Court is not bound to examie any more witness under Section 311 Cr. P. C. on the ground that such witness is also a material witness. If the Court thinks it proper that the witnesses, who have been examined by the prosecution have stated on all points and there is no need to examine more witness on those points, the Court is not bound to examie any more witness under Section 311 Cr. P. C. on the ground that such witness is also a material witness. In 2003 (1) JIC 148 (SC) : JT 2003 (Supplement II) SC 129, State of Punjab v. Harbans Singh and 2003 (2) JIC 154 (SC) : JT 2003 (4) SC 13, Sadhu Ram and another v. State of Rajasthan, it has been held by Honble the Apex Court that order of conviction can be passed on statement of solitary witness if it transpires confidence and is free from blemish so as not required any corroboration. In this case when as many as 10 witnesses have been examined by the prosecution including more than one eye-witnesses of the occurrence and the prosecution is not willing to examine more witness, the circumstances of instant case is not of such nature in which it be taken that it is essential to the just decision of the case to summon these witnesses. 12. Therefore, if the learned Sessions Judge has declined to summon these prosecution witnesses on the prayer of the accused, the impugned order cannot be said to suffer from any jurisdictional error, illegality or material irregularity and the impugned order cannot be taken to result into miscarriage of justice. The revision is dismissed. Revision dismissed. .