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2013 DIGILAW 210 (BOM)

VIJAY v. STATE OF MAHARASHTRA

2013-01-24

U.D.SALVI

body2013
JUDGMENT : Heard. Perused. 2. Issuance of witness summons to Mahalasa, daughter of petitioner No. 2 accused Gangubai in Sessions Case No. 8/2001, conducted by learned Additional Sessions Judge, Nilanga is questioned in the present petition. 3. The petitioners are the accused in the aforesaid case. Charges under sections 302, 201 read with section 34 of the Indian Penal Code, 1860 were framed against the petitioners in the said case. Witnesses were examined and the petitioners/ accused were examined under section 313 of the Code of Criminal Procedure, 1973. Before the arguments could be opened, an application (Exh. 71) was moved by the complainant P.W.3 Shivmurti Pethkar for issuance of witness summons to Mahalasa, daughter of the petitioner No. 2. After hearing the parties, the learned trial Court invoked the provisions under section 311 of the Code of Criminal Procedure on being satisfied that the examination of the said witness was necessary and consequently allowed the said application for issuance of summons on 10-1-2002. 4. According to the prosecution, the deceased Shahu, husband of petitioner/accused no.2 was murdered by the petitioners as he was proving himself as an obstacle in the illicit relations between the two. The complainant P.W.3 Shivmurti, father of the deceased Shahu submitted before the trial Court that the child witness Mahalasa, who was residing with her parents, the deceased Shahu and the petitioner No. 2, was required to be examined to bring truth before the Court and the police had ignored Mahalasa in the course of the investigation. 5. Learned Advocate Mr. S. S. Choudhari for the petitioners submitted that examination of Mahalasa at such belated stage after recording the statements of the petitioners/accused under section 313 of the Code of Criminal Procedure is likely to help the prosecution in filling up the lacunae and, therefore, it would not be advisable to permit the examination of Mahalasa in the said case. However, it is not disputed that Mahalasa was a progeny of the deceased and the petitioner/ accused No. 2, who resided with her parents at the material time. 6. Perusal of section 311 of the Code of Criminal Procedure, 1973 reveals that the law has conferred vast discretion on the trial Court to summon any person as witness at any stage of the trial if the evidence of such witness appears to be essential to the just decision of the case. 6. Perusal of section 311 of the Code of Criminal Procedure, 1973 reveals that the law has conferred vast discretion on the trial Court to summon any person as witness at any stage of the trial if the evidence of such witness appears to be essential to the just decision of the case. Undoubtedly, Mahalasa is daughter of the deceased as well as the petitioner/ accused No. 2, and in all probabilities can be said to be witness to the facts concerning her parents. Thus, the learned trial Court was not wrong in forming an opinion that in light of the facts brought on record, the inmates from the house of victim were the best witnesses to depose about the alleged illicit relations between the petitioners/ accused and, therefore, the proposed witness is material and necessary for just decision in the said case. Shedding light on the facts, which would ultimately help the Court to adjudge the issues justly, cannot be regarded as filling up of lacunae by the prosecution. In any event, the defence would continue to have a privilege of cross-examining the witness summoned and to bring forth before the Court the facts necessary for doing justice in the case. Hence, there is no valid reason to allow the present Writ Petition. Criminal Writ Petition No. 54/2002 is, therefore, rejected. Rule is discharged. Interim relief stands vacated.