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2006 DIGILAW 731 (BOM)

Vilas s/o. Gokul Patil v. State of Maharashtra

2006-04-28

S.P.KUKDAY

body2006
JUDGMENT:- In this Revision, petitioner impugns the order dated 13-10-1998 passed by learned Additional Sessions Judge, Amalner, allowing application filed for recall of the witness. 2. The facts in nutshell are that petitioner along with others, is being tried for offence punishable under sections 498-A, 302 read with Section 34 of the Indian Penal Code ("IPC"). In all seven witnesses were examined during the trial including Dr. Videkar (PW-4). However cause of death was not proved through the testimony of Dr. Videkar. After receipt of CA report, learned Assistant Public Prosecutor filed an application Exh.54 for recall of Dr. Videkar. Learned trial Judge found that evidence of Dr. Videkar is necessary for just decision of the case, as it is necessary to ascertain cause of death of deceased. He, therefore, allowed application for recall of the witness by order dated 13-10-1998. 3. Learned counsel for petitioner challenged legality of this order on the sole ground that recall is for the purpose of filling of lacuna by the prosecution. According to the learned counsel, the cause of death of deceased should have been proved when the witness was examined. The infirmity cannot be cured by resorting to extraordinary power of the Court. Allowing the prosecution to recall the witness amounts to filling of lacuna and causes prejudice to the accused. Therefore, the impugned order deserves to be set aside. 4. Per contra, learned APP Shri. Dound submits that the witness had reserved his opinion regarding the cause of death of the deceased till receipt of C.A.'s report. As the CA's report was not received when the Medical Officer was examined, cause of death could not be proved at that time. Therefore, contention that the prosecution is seeking to fill up the lacuna is misconceived. The order for recall is justified in the present case. Thus, the petition deserves to be dismissed. 5. The petitioner and co-accused are facing trial for offence punishable under sections 302, 498-A read with Section 34, IPC. In a murder case, it is the duty of the prosecution to establish that the deceased died a homicidal death. It is therefore, apparent that the cause of death was essential for just decision of the murder case. 5. The petitioner and co-accused are facing trial for offence punishable under sections 302, 498-A read with Section 34, IPC. In a murder case, it is the duty of the prosecution to establish that the deceased died a homicidal death. It is therefore, apparent that the cause of death was essential for just decision of the murder case. Learned Counsel for the petitioner has contended that earlier Inquest Panchanama was also not proved and the Investigating Officer was recalled for proving the Inquest panchanama; thereafter the Medical Officer is also recalled. According to learned Counsel this is nothing but filling of lacuna. The arguments, that earlier Investigating Officer was also recalled for proving Inquest Panchanama shows that the Assistant Public Prosecutor, in-charge of the case, did not properly conduct the case. Lapses committed by the learned APP may be on account of negligence or due to inadvertence. It is, however, not necessary to comment on this aspect. Even otherwise, the lapses on the part of the Prosecuting Agency is not the governing factor, for deciding application for recall of a witness. What is required to be ascertained is whether the evidence brought on record is necessary for just decision of the case. If it is so required then the Court is justified in exercising power conferred on it by Section 311 of the Criminal Procedure Code to recall witnesses or to summon any person who, in the opinion of the Court, can disclose the facts which would assist the Court to come to a proper conclusion. The Apex Court had an occasion to consider this aspect in the matter of Chhaganlal Daga Vs. M. Sanjay Shaw (2003)11 SCC 486. In that case relating to an offence punishable under section 138 of the Negotiable Instruments Act, the accused had disputed service of notice. After conclusion of the arguments, complainant moved the trial Court for reception of postal receipt by exercising powers under section 311 of the Code of Criminal Procedure. The trial Court allowed the application but the High Court had set aside this order. In this context, the Apex Court observed in para No.6 of the report that "the only factor which should govern the court in exercise of powers under section 311 should be whether such material is essential for the just decision of the case. The trial Court allowed the application but the High Court had set aside this order. In this context, the Apex Court observed in para No.6 of the report that "the only factor which should govern the court in exercise of powers under section 311 should be whether such material is essential for the just decision of the case. Even a reading of Section 311 of the Code would show that Parliament has studded the said provision lavishly with the word "any" at different places. This would also indicate the widest range of power conferred on the Court in that matter." 6. In the present case, it can be seen that the evidence regarding cause of death of the deceased which is sought to be brought on record is necessary for just decision of the murder case. Therefore, lower Court has rightly exercised jurisdiction u/s 311 of the Cr.P.C., to recall Medical Officer. In this view of the matter, no case is made out for interference. Revision is, therefore, dismissed. Stay granted earlier is vacated. Rule discharged. Revision application dismissed.