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2013 DIGILAW 962 (BOM)

State of Maharashtra v. Darshana Mukesh Jalodiya

2013-05-07

M.L.TAHALIYANI

body2013
JUDGMENT Heard Mr. Anand Fulzele, learned Additional Public Prosecutor for the applicant-State and Mr. A.D. Hajare, 1earned counsel for respondent nos. 1 and 2. 2. Admitted. Heard finally. 3. The applicant-State feels aggrieved by the order passed by learned Additional Sessions Judge rejecting the prayer of the applicant to examine the Branch Manager, Oriental Bank of Commerce, Namakkal Branch of Tamil Nadu State. The applicant wanted to establish that deceased Mukeshkumar had a joint account in the said Branch along with accused no. 1-Darshana. The applicant also wanted to establish during the course of trial that accused no.1-Darshana was wife of deceased-Mukeshkumar. The prayer of the applicant to examine the Branch Manager was granted. It appears that the Branch Manager could not appear before the Court on due date because summons could not be served. When a fresh prayer was made by the applicant, the same was rejected. 4. Learned Addl.P.P. Mr. Anand Fulzele has submitted that the Branch Manager is a material witness considering the fact that the accused no. 1 denies that she was wife of the deceased. The prosecution has to bring on record the circumstances and material to establish that the deceased was husband of accused no.1. 5. Learned counsel Mr. Hajare, appearing on behalf of the respondents has opposed the Application on the ground that the trial has come to a fag end and that statements of the respondents 1 and 2 have been recorded by the trial Judge under section 313 of the Cr.P.C. 6. As a matter of legal proposition, the learned trial Judge is not prevented from calling or recalling any witness even after recording of statement u/s 313 Cr.P.C. It is not be mentioned here that the trial Court can call or recall any witness if his evidence is necessary for just and proper decision of the case. This can be done at any stage before pronouncement of the judgment. 7. In the present case, contentious issue is that as to whether the deceased was husband of the accused no.1 or not. The accused no. 1 denies the same and the applicant asserts the same. In view of the controversy, the evidence of witness assumes great importance. In my opinion, his evidence is necessary for just and proper decision of the case Probative value of the evidence obviously will have to be decided while deciding the case finally. 8. The accused no. 1 denies the same and the applicant asserts the same. In view of the controversy, the evidence of witness assumes great importance. In my opinion, his evidence is necessary for just and proper decision of the case Probative value of the evidence obviously will have to be decided while deciding the case finally. 8. The order passed by the learned Addl. Sessions Judge below Exh.99 dated 16.1.2013 is set aside. The learned Judge is directed to allow the prosecution/applicant to examine the Branch Manager of Oriental Bank of Commerce, Branch Namakkal of Tamil Nadu. The Addl. Public Prosecutor before the trial Court shall apply for grant of summons or shall direct the Investigating Officer to keep the witness present on next date of hearing. At this stage, I am informed that the case is listed on the Board of 16th May 2013. The learned trial Judge after hearing the learned Addl. Public Prosecutor and the learned counsel for the respondents shall decide a suitable date as to when the witness should be available for recording his evidence. Application is disposed off accordingly. Ordered accordingly.