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2004 DIGILAW 159 (ORI)

KALU BHOLA v. STATE OF ORISSA

2004-03-19

L.MOHAPATRA

body2004
L. MOHAPATRA, J. ( 1 ) THE petitioner in this application under Section 482 of the Code of criminal Procedure has prayed for a direction to the trial Court to delete and ignore the subsequent corrections made in the deposition of P. W. 2 by the ex-Presiding officer in S. T. Case No. 2/23 of 2002 pending in the Court of learned Additional Sessions Judge, Khurda. ( 2 ) THE petitioner and some other accused persons are facing trial for commission of offence under Section 302 of the Indian Penal Code apart from other offences. The case of the prosecution as revealed in the F. I. R. is that on 13-1-1996 at about 7 p. m. the deceased having decided to have holy snana during 'makar' left her husband in the house of one Golekha bhola and while coming she heard the accused persons discussing and threatening to kill her. The informant also having heard the said discussion advised the deceased to go back to the house of Golekha bhola. At that point of time accused Binofl bhola fired by means of gun at the deceased which hit the deceased near waist and she fell down. Thereafter she was shifted to varandah of Golekha Bhola and later on she died. ( 3 ) DURING trial one Sukanti Bhola shown as an eye-witness was examined as P. W. 2. In the examination -in-chief she stated that she and her sister-in-law Mani Bhola were sleeping inside the house and they heard accused Ralu bhola asking the co-accused bina to fire at the deceased. Later on the presiding Officer corrected the same and it was recorded to the effect that when the said witness and her sister-in-law Mani Bhola were standing in front of the house, they heard Kalu Bhola asking Bina to fire at the deceased. ( 4 ) SHRI Indrajit Ray, learned Senior Advocate appearing for the petitioner submitted that after the deposition was recorded the signature of the witness was taken. The presiding Officer also signed the deposition and certificate was given to the effect that the deposition had been typed to his dictation in open Court and had been corrected by him. After giving such a certificate there was no scope for the Presiding Officer to make any correction in the deposition of P. W. 2. The presiding Officer also signed the deposition and certificate was given to the effect that the deposition had been typed to his dictation in open Court and had been corrected by him. After giving such a certificate there was no scope for the Presiding Officer to make any correction in the deposition of P. W. 2. It was further contended that since the corrections were made behind back of the petitioner, there was no opportunity for the petitioner to cross-examine the witness in that regard. It is further submitted that if the uncorrected original deposition is taken into consideration, P. W. 2 is not an eye-witness to the occurrence, but if the corrections are allowed P. W. 2 becomes an eye-witness to the occurrence and therefore any such correction made by the Presiding Officer was without jurisdiction, intentional and the same has caused serious prejudice to the petitioner. ( 5 ) IT appears from the order sheet that an objection was also taken before the trial court and report was called for from the previous Presiding Officer who had made corrections. But till 19-12-2003 the ex-Presiding Officer had not given any report. When the matter was brought to the notice of this Court in CRL MC. No. 2970 of 2003 disposed of on 5-2-2004, this Court directed the said presiding Officer to look into the records and submit a report. Pursuant to the direction of the Court in the aforesaid case, ex-presiding Officer submitted a report on 23-2-2004. In the said report, he has stated that he recorded the deposition of P. W. 2 in open Court and signed the same. Signature of the witness was also taken in the deposition. Later on same day while going through the deposition of P. W. 2 as well as depositions of P. Ws. 3 to 5 which were also recorded on the very same day, he detected some typographical errors in the deposition of P. W. 2 and corrected the same with initial. By the time he corrected the mistake certified copy of the same had already been obtained without his notice. He has further stated that corrections made in the deposition of P. W. 2 were neither intentional nor deliberate and it was not with any ulterior motive. By the time he corrected the mistake certified copy of the same had already been obtained without his notice. He has further stated that corrections made in the deposition of P. W. 2 were neither intentional nor deliberate and it was not with any ulterior motive. ( 6 ) LEARNED counsel for the informant submitted that P. W. 2 was cited as an eyewitness in the charge sheet and if reference is made to the statement recorded under section 161 Cr. P. C. of the said witness, it will appear that she was an eye-witness to the occurrence. Referring to the evidence of other witnesses examined in trial it was also submitted that all those witnesses have stated that P. W. 2 was also standing at the spot and was an eye witness to the occurrence. Therefore, the correction made was in conformity with the statement made by p. W. 2 and only amounts to correction of some typographical errors. ( 7 ) I have perused the deposition of P. W. 2 before correction and after correction as well as depositions of other witnesses examined during trial and the report of the ex-Presiding Officer who made corrections. There is no doubt that the deposition of P. W. 2 was recorded and after recording of such deposition the witness had signed the same and the presiding Officer has not only signed the deposition but certified that the same had been typed to his dictation and had also been corrected by him. Once a witness has signed the deposition copy and certificate is given by the Presiding Officer to the effect as aforesaid, there is noj scope available to the presiding officer to touch the deposition in any manner whatsoever. Learned Presiding Officer was not justified in making any correction in the deposition after the same was signed by the witness and the Presiding Officer himself. There is nothing on record to show that the witness at any point of time raised any objection with regard to such typographical errors. I am of the view that not only the Presiding officer committed illegality in making corrections but also he should be warned not to repeat the same in future. ( 8 ) NOW coming to the prejudice that has been caused to the petitioner because of such correction. I am of the view that not only the Presiding officer committed illegality in making corrections but also he should be warned not to repeat the same in future. ( 8 ) NOW coming to the prejudice that has been caused to the petitioner because of such correction. I find that the some other witnesses examined in course of trial have also stated about the presence of P. W. 2 at the time of occurrence and. the P. W. ,2 had been cited as an eye-witness to the occurrence. Apart from the above, if the said witess had stated in chief that he was inside the house and obviously had not seen the occurrence as stated by-the learned counsel for the petitioner, there is no justification for making the suggestions as made in para-3 of the deposition which are quoted below :"it is not a fact that I have not mentioned in the F. I. R. that Kalu Bhola specifically asked Binod Bhola to shoot the deceased; and that I have mentioned in the F. I. R. that Kalu, Shesadev, Ganeswar and Kalu asked Binod to shoot the deceased. "confronted with the aforesaid question put by the Court, learned counsel for the petitioner submitted that since he is not the conducting counsel he shall not be in a position to answer the same. However, in order to give an opportunity to the accused persons, I am of the view that interest of justice shall be best served if the P. W. 2 is recalled and is asked to explain the statement made by her in chief, so that the petitioner and other accused persons shall have the opportunity to cross-examine the said witness. ( 9 ) I, accordingly, dispose of this application directing that the P. W. 2 shall be recalled to explain the statement made in examination in chief which is the subject matter of dispute before the Court and the petitioner and other accused persons shall be afforded opportunity to cross-examine P. W. 2 on her explanation. With the aforesaid observations and directions, the Criminal Misc. Case is disposed of. Order accordingly.