PRAVIN DHIRU VAJA KODI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard learned senior counsel Mr. Yogesh Lakhani with learned advocate Mr. Jay M. Thakkar for the petitioner and learned APP Mr. Manan Mehta for the respondent - State. Petitioner herein has challenged an order dated 08.07.2016 below Exhibit 250 in Special Atrocity Case No.13 of 2013 by the Additional Sessions Judge of Una, whereby an application by the learned APP to issue witness summons to the Principal of Primary School of Ankroli has been allowed under Section 311 of the Code of Criminal Procedure (for short "the Code").

(2.) If we peruse such application, the prosecution has disclosed that one prosecution witness Rajuben has been examined and as per the case of the prosecution, she is educated, since she has accepted the summons by putting her signature. But during her examination, she has disclosed that she is illiterate and she is unable to read and write and, therefore, evidence of Principal of Ankroli Primary School is necessary to prove that said witness is literate. The petitioner herein being original accused who is present in judicial custody has filed written reply cum submission at Exhibit 255 on 25.05.2016, which runs into 48 pages. The application at Exhibit 250 is dated 11.05.2016 and, therefore, there is no delay on the part of the petitioner in objecting such application.

(3.) The sum and substance of the petitioner's objections before the trial court as well as before this Court is to the effect that the impugned order is a result of manifest misreading of Section 311 of the Code and order suffers from grave infirmities and error of law and that the trial Court has failed to consider the reply and written submissions at Exhibit 255; copy of which is produced at Annexure B. It is also submitted that impugned order is not speaking order since no reasons are assigned for allowing such application, which results into allowing the prosecution to fill up the lacuna in the investigation against the accused. It is also submitted that the trial Court ought to have appreciated that PW 29 Rajuben is a sister of the accused, had not supported the case of the prosecution and she has been declared hostile and, therefore, evidence of newly summoned witness is neither essential nor required for reaching just decision of the case. Copy of her deposition is produced at Annexure D. It is further submitted that the impugned order is vague and it does not fall within the ambit of Section 311 of the Code. It is further submitted that the pleadings and reasons before the trial court by the Additional Public Prosecutor in Exhibit 250 is smacked by Section 153 of the Indian Evidence Act (for short "the Act"), which confirms that no evidence shall be given to contradict the evidence of another witness. It is further submitted that PW No. 29 in her deposition specifically stated that she is illiterate and does not know how to write, read or sign and, therefore, to contradict such version if witness summons is issued as per the impugned order, then it is against the provisions of Section 153 of the Act. It is further submitted that the trial Court has cursorily brushed aside the judgments of the Honourable Supreme Court of India and this High Court.