MANIBHAI DEVJIBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner is facing the charge of murder. He is alleged to have burnt his wife to death. He is facing the trial for that charge. The trial has commenced and some witnesses have been examined. Mr. Desai, L. A. submits that 15 witnesses have been examined. At that stage, the accused moved the Trial Court by application Exh. 55 with a prayer that witnesses Bharatbhai Budheshwar Talati and Shankerbhai Madhabhai Vankar who have been shown in the charge-sheet as prosecution witnesses and the copies of whose statements before police have been given to the accused, should be examined by the Court as Court witnesses. The learned Addl. Sessions Judge in charge of the case rejected that application Exh. 55 on February 15, 1993. The accused, therefore, on March 1, 1993, gave another application Exh. 57 with a prayer that the aforesaid two witnesses be directed to be produced for cross-examination by the accused. The learned Judge rejected that request as well.

(2.) Though in none of the two applications Exhs. 55 and 57, there was any prayer by the accused that the prosecution should be directed to examine the aforesaid witnesses as prosecution witnesses, Mr. N. S. Desai, L. A. for the petitioner, upto a certain stage of his arguments, attempted to contend that the prosecution should be directed to examine the aforesaid two persons as prosecution witnesses, so that the accused can cross-examine these witnesses and truth could be brought to light. After some authorities were referred to at the Bar, Mr. Desai did not press that argument any further, and he withdrew that request. However, he very strenuously contended that this Court should direct that Trial Court to examine those witnesses as Court witnesses, and in the alternative the Trial Court should be directed to take a course of action by which the aforesaid two witnesses are offered to the accused for cross-examination.

(3.) According to Mr. Desai, the statements of the aforesaid two witnesses recorded by the police during the course of investigation are to the effect that they found that there was a hue and cry and smoke was found to be coming out of the house of the accused, the doors of the house were closed and as a result of peeping through the window, the witnesses found that the wife of the accused was on fire. The two witnesses therefore started in search of the accused and they met the accused at the entrance Maliwada, and the witnesses informed the accused that his wife had sustained burns. According to Mr. Desai, therefore, the facts contained in the statements of the aforesaid two witnesses would clearly prove that the accused was not at his house at the time of the incident for, in the submission of Mr. Desai, Maliwada is a place far away from the place of the incident. Mr. Desai contends that the copies of the statements of the aforesaid two witnesses have been given to the accused; names of the aforesaid two witnesses have been shown in the list of prosecution witnesses in the charge-sheet, and now the prosecution, with ulterior motive has dropped these witnesses. Therefore, as per the first argument of Mr. Desai, this Court should direct the prosecution to examine those witnesses as the prosecution witnesses.