MIYANA ISMAILBHAI NOORMOHAMMED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This revision application is filed by the ori. accused of Sessions Case No. 39 of 2001 pending before the Ld. Fast Track Court Judge ( Ld. Addl. Sessions Judge), Dhangadhra against an order passed by the said Court on 11.3.2003 rejecting an application of the prosecution exh. 139 under sec. 311 of Code of Criminal Procedure to examine additional witness Sattarbhai Adubhai. The applicants are facing trial for the offence punishable under Section 302 of Indian Penal Code.

(2.) After the trial was almost over, an application at exh. 139 came to be filed by the prosecution to examine witness Sattarbhai Adubhai alleged to be an eye witness of an incident and not shown as witness in the charge-sheet nor his statement under sec. 161 of CrPC came to be recorded by Investigating Officer.. Application was objected by the defence and after hearing the parties, the trial court came to the conclusion that the witness who is proposed to be examined is son-in-law of deceased and brother-in-law of complainant Mumtazben. In the evidence on record, it is disclosed that the witness might be present at the time of incident. The trial court further observed that only because I.O. has not examined him under sec. 161 of CrPC or not cited as a witness in the charge-sheet, would not establish the fact that the witness might or might not be the eye witness of the incident. The trial court further observed that by summoning witness Sattarbhai Adubhai, no prejudice would cause to the defence.

(3.) Ld. advocate Mr. Dagli for the petitioner attacked the order impugned on the ground that the application under sec. 311 of CrPC came to be filed at belated stage when trial was almost over and whole evidence was recorded. It was urged that now summoning and examining the witness Sattarbhai Adubhai the great hardship and prejudice is likely to be caused to the accused - present petitioners inasmuch as the defence of the accused in the trial is disclosed. It was further argued that in three line application, the concerned P.P. in-charge of the prosecution, did not mention any reason to justify to exercise the discretion of the court under sec. 311 of CrPC. It was further argued that had the reason been assigned in the application under sec. 311 of CrPC, the defence would have met the same and controverted the reason. It was urged that the defence was deprived of such an opportunity. It was further emphasized that now when the trial is over, to fill up the lacuna in prosecution case, this application is preferred by the prosecution at belated stage which was against the law. Ld. advocate for the petitioners also relied upon the decision of Mysore High Court in the matter of State of Mysore vs. A.G. Ramaswamy, reported in 1969 Cri.L.J. p. 123, the decision of Punjab & Haryana High Court in the matter of Budh Ram vs. State of Punjab and Others, reported in 1996 Cri. L.J. p. 3356, the decision Madras High Court in the matter of re, N. Krishnaswamy & Ors., reported in 1956 Cr.L.J. P. 583, the decision of the Rajsthan High Court, in the matter of Cheeku Singh vs. State of Rajsthan, reported in 1998(1) Crimes 622 (Raj.) and the decision of Bombay High Court in the matter of B.D. Goel vs. Ebrahim Haji Husen Sanghani & Ors., reported in 2001 Cri.L.J. 450, to substantiate his contention that belated application under sec. 311 of the Code of Criminal Procedure and that too fill up the lacuna in prosecution case must not be entertained.