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2023 DIGILAW 269 (UTT)

Premveer v. State of Uttarak

2023-04-10

RAVINDRA MAITHANI

body2023
JUDGMENT : Ravindra Maithani, J. The challenge in this revision is made to the order dated 22.12.2022, passed in Session Trial No. 43 of 2021, State v. Premveer and others, by the court of Additional District and Sessions Judge, Ramnagar, District Nainital (“the case”). By it, the application filed under Section 311 of the Code of Criminal Procedure, 1973 by the revisionist has been rejected. 2. Heard learned counsel for the parties and perused the record. 3. The case is based on an FIR lodged on 13.04.2021 by the respondent no.2. According to it, on 13.04.2021, at 02:40 A.M., the applicant knocked at the door of the informant. As soon as the father of the informant opened the door, the revisionist fired at him, which was witnessed by informant and his mother. 4. During trial of the case, statement of PW 2 Smt. Malti Devi, mother of the Informant was recorded. Thereafter, under Section 311 of the Code was filed by the revisionist specifically indicating that following questions are to be asked from PW 2 Smt. Malti Devi :- (i) What was the length of the gun in feet? (ii) From what distance, the applicant fired? (iii) Whether any source of light was available outside the gate? (iv) What was the motive of firing? 5. State objected to the application moved by the revisionist under Section 311 of the Code. By the impugned order dated 22.12.2022, the application was rejected. The court noted that Smt. Malti Devi had already been examined. The revisionist was given sufficient opportunity to cross-examine her. The question with regard to fire arms could be asked from the police personnels. The court also observed that as far as the motive is concerned, this is an issue relating to arguments. The court also observed that if any opportunity is given to the revisionist, there are chances that PW 2 Smt. Malti Devi may not support the prosecution case. 6. Learned counsel for the revisionist would submit that the questions which are proposed to be asked from PW 2 Smt. Malti Devi are necessary for just decision of the case. He would submit that after all it is a question of life of the revisionist; he has been implicated in a murder case; the court should have best available evidence so as to adjudicate in accordance with law. He would submit that after all it is a question of life of the revisionist; he has been implicated in a murder case; the court should have best available evidence so as to adjudicate in accordance with law. It is argued that in the charge sheet, reference has been made to a country made pistol by which firing was made whereas, it is argued that Smt. Malti Devi has stated that deceased was fired by a gun. But, the learned counsel would submit that no question with regard to weapon of offence has been asked to her. 7. Learned counsel for the revisionist would also submit that, in fact, initially the family members of the revisionist did not help him to get legal assistance because it was the matter between the relatives, but, subsequently when they realized that the revisionist has been falsely implicated, they provided him legal assistance. It is submitted that earlier the Amicus Curiae did not ask these questions, which were relevant for just decision of the case. Hence, it is submitted that the impugned order deserves to be set aside and the revision allowed. 8. On the other hand, learned State Counsel would submit that PW 2 Smt. Malti Devi is a village woman; she cannot be expected to make any distinction between a gun and a country-made pistol; she is an eye-witness; she has even identified the revisionist by voice, because they are relatives. Hence, it is argued that the application under Section 311 of the Code has rightly been rejected. 9. Section 311 of the code is a provision by which a witness may be further examined or a person may be summoned as a witness, if it appears to the court that evidence of such person is essential for the just decision of the case. Section 311 of the Code provides as hereunder:- “311. Power to summon material witness, or examine person present.—Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” 10. During the course of arguments, the site plan of the case has been placed for perusal of the Court. It is admitted by the learned counsel for the revisionist also that in this site plan, the distance from which the fire was made has also been given, which is 4 feet. But, it is argued that there are still three more questions required to be asked from PW 2 Smt. Malti Devi. 11. In so far as the question of motive is concerned, in fact, the learned Amicus Curiae has also questioned PW 2 Smt. Malti Devi and in para 14, she has stated that on the date of incident, the deceased had taken side to the in-laws of the deceased and that was the dispute between the deceased and the revisionist. She has categorically stated that there is no other dispute between the revisionist and the deceased. 12. In so far as the question of source of light is concerned, the PW 2 Smt. Malti Devi has not stated anything about the source of light outside the gate. She has stated that as soon as the door of the gate was knocked, she switched on the electric light. 13. In fact, nothing was asked from the PW 2 Smt. Malti Devi about the weapon of offence. She has categorically stated that her husband was fired by the revisionist. This Court is of the view that it is not essential for just decision of the case that the PW 2 Smt. Malti Devi may be asked about the length of the gun. 14. Having considered, this Court is of the view that there is no force in the revision and the revision deserves to be dismissed at the stage of admission itself. 15. The criminal revision is dismissed in limine.