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2004 DIGILAW 264 (CAL)

PRATAP CHANDRA MONDAL v. STATE OF WEST BENGAL

2004-04-08

P.N.SINHA

body2004
P. N. SINHA, J. ( 1 ) THIS revisional application is directed against the order dated 17. 9. 03 passed by the learned Assistant Sessions Judge, 1st Additional Court, Burdwan in connection with Sessions Case No. 18/03 (G. R. Case No. 551 of 1999) thereby allowing petition dated 26. 8. 03 filed on behalf of prosecution for examining 4 more witnesses whose names were not mentioned in the charge-sheet as witnesses for prosecution. ( 2 ) FACTS of the case as it appears from the materials on record that memari P. S. Case. No. 69 dated 26. 4. 99 was started on the basis of complaint/fir lodged by Smt. Gouri Bag making allegation against these five petitioners to the effect that on 4. 12. 95 her daughter Anima Bag was married to Prakash Mondal son of petitioner No. 1 according to Hindu rites and customs and at the time of marriage gold and silver ornaments and other articles were given to the bridegroom party. But the in-laws of her daughter started torture on her both physically and mentally demanding more dowry. On 28/29. 3. 99 one person from Anima's in-laws house came to the informant and informed her that her daughter Anima was attacked with severe diarhoea and has been admitted to Burdwan hospital. Receiving the news she along with others came to Burdwan hospital and found that her daughter was lying dead with severe burn injuries. On the basis of FIR lodged by her the aforesaid P. S. case was started and it ended in submission of charge-sheet. After commitment, the case was transferred to the Court of the learned assistant Sessions Judge, 1st Additional Court for disposal. During trial all the witnesses as per charge sheet has been examined and cross-examined. Thereafter, on 26. 8. 03 a petition was filed on behalf of prosecution to examine four more witnesses and the learned Judge by the impugned order allowed the prayer of prosecution, and hence, this revision. ( 3 ) LEARNED Advocate for the petitioners contended that the said four witnesses were not cited as prosecution witnesses in the charge-sheet. No copies of there 161, Cr. P. C. statements were supplied to the accused persons. The FIR maker herself was not examined. ( 3 ) LEARNED Advocate for the petitioners contended that the said four witnesses were not cited as prosecution witnesses in the charge-sheet. No copies of there 161, Cr. P. C. statements were supplied to the accused persons. The FIR maker herself was not examined. If the informant herself is not examined how the witness whose name was mentioned in FIR can be examined as a witness to corroborate the evidence of informant. If copies of 161, cr. P. C. statements of the said witnesses are not supplied to the accused persons, the accused persons would be seriously prejudiced as they would not be in a position to take contradictions from the said witnesses. Power of court to examine any witnesses under Section 311 of Cr. P. C. cannot be used to feel in lacuna of prosecution case. The order of the learned Judge is without any reason as to why the said four witnesses requires to be examined on behalf of prosecution. Accordingly, the impugned order passed by the learned Judge permitting the prosecution to examine four witnesses should be set aside. In support of his contention he cited the decisions reported in 1991 Cr LJ 1521 and 1987 C Cr LR (Cal) 52. ( 4 ) LEARNED Advocate appearing for the State contended that it is a case of heinous crime and it is a case of burning a house wife torturing her by demand of more dowry. Examination of the said four witnesses is required for proper adjudication of the case and for fair trial and for the ends of justice. There is no ground to interfere with the findings of the learned Judge and the learned Judge has rightly allowed prayer of prosecution for ends of justice. There is no merit in the revisional application and it should be dismissed. ( 5 ) AFTER considering the arguments advanced by the learned advocated for the parties and carefully going through the materials on record i find that the learned Judge by order dated 17. 9. 03 mechanically allowed the prayer of the prosecution to examine four more witnesses for ends of justice without assigning any reason for allowing such a prayer. It is clear that there is no 161, Cr. P. C. statements of these four witnesses and copies of 161, cr. P. C. statements of these four new witnesses were not supplied to the accused petitioners. It is clear that there is no 161, Cr. P. C. statements of these four witnesses and copies of 161, cr. P. C. statements of these four new witnesses were not supplied to the accused petitioners. Nowhere in the case diary there was reflection of any kind of appearance by these petitioners in the scenario of incident. Of course, in the list of witnesses mentioned by complainant Court Bag names of pashupati Das and Durga Majhi were there. But names of other two witnesses namely Shanti Das and Lakshmi Das were not in the list of witnesses mentioned by complainant in her complaint/fir. If the prosecution wats to examine witnesses not cited in the charge-sheet as witnesses or not mentioned as witnesses in the complaint or FIR, the Judge has to apply his mind carefully and the Judge has to be satisfied that the evidence of such new witnesses is essential for the just decision of the case. ( 6 ) WHETHER new evidence is essential of not must of course depend upon the facts of each case. It is not clear to this Court as to whether name of these four new witnesses transpired in the evidence of witnesses already examined before the Court. The object of Section 311 of Cr. P. C. is to find out the truth which is necessary for just decision of the case. In invoking power under this section the learned Judge at the same time cannot fill in lacuna of prosecution case and cannot destroy the advantage which the defence has obtained. The Judge also in the form of examining any new witness of bringing any new evidence under Section 311 of Cr. P. C. cannot show favour either to the prosecution to the defence. Before allowing a prosecution prayer to examine so many witnesses who were not cited as witnesses in the charge-sheet and who were not examined by the I. O. during investigation and whose statements were not recorded under Section 161 of Cr. P. C. , learned judge has to apply his mind carefully and he cannot do so by using a single line that, for ends of justice the prayer for prosecution is liable to be allow. P. C. , learned judge has to apply his mind carefully and he cannot do so by using a single line that, for ends of justice the prayer for prosecution is liable to be allow. He has to apply his mind as to whether examination of new witnesses is at all essential for just decision of the case and what is the nexus of these witnesses to the incident. The Judge must weigh and consider whether examination of new witnesses would amount to fill in lacuna of prosecution case. On the whole, the learned Judge before allowing such prayer must apply his mind and pass a reasoned order considering whether examination of all these four witnesses are at all necessary for the just decision of the case. Reasoned order here should not be construed like a judgment or lengthy order disclosing nature of evidence of new witnesses. There must be some grounds behind the order allowing prosecution prayer e. g. , names of such witnesses transpired during evidence of other witnesses or, that their names were there in complaint/fir or before medical officer or of the time of seizure etc, and these matters cannot be exhaustive but illustrative. ( 7 ) AS the impugned order does not reflect such consideration I am of opinion that the said order was not proper and legal and accordingly the said order is set aside. Learned Assistant Sessions Judge is directed to reconsider the prayer of prosecution regarding examination of these four witnesses and he shall dispose of the matter after such consideration afresh applying the proper judicial mind in the light of the observations indicated above. ( 8 ) THE revisional application accordingly succeeds and is allowed and is also disposed of in terms of the order as indicated above. ( 9 ) INTERIM order of stay, if any, stands vacated. ( 10 ) SEND a copy of this order to the learned Assistant Sessions Judge, 1st Additional Court, Burdwan for information and necessary action.