STATE OF GUJARAT Vs. HARIVADAN NATVARLAL THAKKAR

JUDGEMENT

(1.) RULE. Learned counsel, Mr.B.M. Gupata Jani waives service of notice of rule for respondents. The present Revision Application has been filed by the State challenging the order passed below application, Exh.251 in Sessions Case No.100 of 2010 by the Learned Additional Sessions Judge, Court No.8, Ahmedabad dated 28.12.2011 allowing the witnesses to be examined as defence witnesses for the defence of alibi on the grounds stated in the memo of application inter alia that the defence may examine any person as witness but cannot examine the prosecution witness as defence witness without voluntarily consent of such witnesses.

(2.) LEARNED APP Mr.H.L. Jani has submitted that the defence of alibi, which is an afterthought, is now sought to be further developed on the basis of the deposition of the witnesses, who are to be summoned. Therefore, learned APP Mr.Jani submitted that such an application cannot be entertained and the defence of alibi can be established by the accused on the basis of the material and evidence. It was submitted that as the chargesheet and the papers of the chargesheet are required to be given to the accused with the list of witnesses, which the prosecution desire to examine. Similarly the defence is also required to give the papers in support of which he desirous to examine the witnesses and the purpose for which such witness is summoned. LEARNED APP submitted that if the witnesses were not permitted to be examined as a Court witnesses, there is no reason to permit them to examine as defence witnesses and the order passed below Exh.251 by the Court below has also granted such prayer.

(3.) THEREFORE, the witness cannot be permitted to be examined as a witness particularly when such an application is given based on evidence of few witnesses, which is contradicted by the deposition of the I.O. The witnesses are to be summoned like the dog squade or other doctor or photographers when there is specific case of the prosecution that no such photograph has been taken or dog squad has been called as stated in the evidence of I.O. THEREFORE, such prayer cannot be granted to examine as witness without any evidence or justification. If such permission is ranted, it would amount to allowing the defence to proceed on the basis of hypothesis developed on the evidence of the witnesses during the course of trial. It is in these circumstances, such prayer cannot be granted.