(1.) The instant petition has been filed against the order dtd. 9/3/2022 whereby an application u/s 311 of the Code of Criminal Procedure to recall the witnesses has been dismissed.
(2.) The brief facts of the case are that the petitioners are facing trial under sec. 304-B of IPC. Petitioner no.1 is husband and petitioner no.2 is father-in-law of deceased. Both were prosecuted for the reason that the deceased Anuradha Diwakar committed suicide on 22/11/2020 by consuming poison. She was married on 24/4/2018. Since the death was unnatural and was within 7 years of marriage, after conducting the inquiry, the charge sheet was filed. The statement of father Bhagirathi (P.W.1) was recorded before the Court on 27/11/2011. subsequently, the application which came to be filed to recall the witness for re-examination of witness was dismissed.
(3.) Learned counsel for the petitioner would submit that the merg statement of the father of deceased was recorded on 23/11/2020 by the Executive Magistrate and the statement u/s 161 CrPC though is part of the charge sheet which was recorded on 23/6/2021 but was not confronted during evidence. Whereas while Bhagirathi, the father of deceased, was examined, after declaring him hostile, the learned Public Prosecutor wrongly got exhibited the merg statement as Ex.P-1 under the caption of Police statement as if it was recorded u/s 161 CrPC. He would submit that it shows the fabrication and falsity since the statement u/s 161 which was actually recorded by the police was not confronted during the cross-examination of P.W.1, therefore, serious lacuna occurred in such examination and because of such wrong, undue advantage would be given to prosecution causing prejudice to the petitioner and he cannot be made to suffer. It is contended that inconsistency in the statement can always be confronted, otherwise it would cause prejudice to the petitioner as he would suffer an irreparable loss. He placed reliance on a decision of the Supreme Court in V.N. Patil versus K. Niranjan Kumar (2021) 3 SCC 661 and submits that failure of justice on account of mistake of either party in bringing valuable evidence on record cannot be allowed to sustain, consequently the court below should have allowed the application under Sec. 311 of Cr.P.C. He further submits that still the evidence of prosecution has not been concluded, therefore, this petition may be allowed so as to meet the ends of justice.