KISHOR AMRUTLAL THAKKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By order dated 23rd January 2013 passed in common below Application Exh. 266 and Application Exh. 276 in Sessions Case No.14 of 2009, the learned Third Additional Sessions Judge, Dhrangadhra, allowed the said two applications of the prosecution and thereby allowed the prosecution to call four witnesses for examination and to give evidence.

(2.) The applicant original accused felt aggrieved by the said order, and has therefore challenged the said order by presenting before this court the instant Revision Application under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.').

(3.) The profile of attendant facts may be stated. A First Information Report being I-C.R. No.120 of 2008 for the offences punishable under sections 302, 352, 143, 147, 148, 149 of the Indian Penal Code, 1860, was registered against the applicant-accused at Halvad Police Station, leading to commencement of Sessions Case No.14 of 2009 before the court of Additional Sessions Judge, Dhrangadhra. In the trial, the prosecution appears to have cited 41 witnesses. They were examined. At that stage and when the evidence of investigating officer was underway, application Exh. 266 dated 31.10.2012 was filed by the Additional Public Prosecutor submitting that two important witnesses, who were the wife and the mother of the deceased, were left out from being examined. It was submitted that on perusal of the papers and the copies of the depositions, it was found necessary in the interest of justice to examine witness No.36 named Jyotsnaben Jagdischandra Vaishnav, the mother of the deceased and witness No.37 named Nehaben Rajeshbhai Vaishnav, the wife of the deceased, and it was prayed that they be called for examination. By filing reply to the said application, the prayer therein was opposed by the original accused and it was submitted that the application was filed only to harass him and to protract the trial. Thereafter, the prosecution moved another application Exh.276 dated 15.01.2013 on the similar lines submitting that in course of the evidence of the investigating officer it was noticed that certain witnesses were left out but they were required to be examined, and in that connection, an application dated 31.10.2012 was given. It was further submitted that on a further examination of the depositions, which were not available at that time in the files, two other witnesses being witness No.29 - Sanjaybhai Pranbhai Patel and witness No.34 - Chandrakant Gopalbhai Sheri were required to be examined, and they may be permitted to be examined along with witness No.36 and witness No.37. Original accused persons objected to the said application by putting endorsement thereon. Learned Additional Sessions Judge considered both the applications Exh. 266 and Exh. 276 together and allowed the same.