SHAILESH VINAYAK CHAVAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This petition takes an exception to the impugned order dated 22 nd October 2018 passed on Exhibit "2" in Criminal Appeal No. 964 of 2018 by Sessions Court, Mumbai. There is further prayer to direct the said Court to recall Jagannath Shripti Pawar (PW 6) and allow the petitioner to cross examine him on the point of omissions in the statements of Janardhan Lohar (PW 5) and more specifically portions marked 'A', 'B' and 'C' as per provisions of Section 391 of the Criminal Procedure Code (for short 'Cr.Pc'). In the alternative, it is also prayed that, the petitioner may be permitted to record further evidence of Jagannath Pawar (PW 6) and allow the petitioner to cross examine him on the point of omission in the statements of Janardhan Lohar (PW 5).

(2.) The petitioner herein was tried in C.C. No. 376/P/2001 and Trial Court relying upon the evidence of eye witnesses including injured witnesses Keshav Vane (PW 1) and Mrs. Kusum Lohar (PW 6) coupled with the medical evidence convicted the petitioner for the offence punishable under Section 324 of Indian Penal Code. Being aggrieved by the said judgment and order dated 23.11.2016, the petitioner filed Criminal Appeal No.964 of 2016 before the Sessions Court for Greater Bombay. In the said appeal the petitioner on 3 rd May 2016 preferred an application vide Exhibit-2 under section 391 Cr.Pc for recalling the investigating officer Janardhan Pawar (PW 6) in order to confront him with the omissions and contradictions, which portion was marked in the testimony of Janardhan Lohar (PW 5) at the stage of the trial. The said application came to be rejected, hence the present petition.

(3.) Learned counsel appearing for the petitioner submits that, due to inadvertence during the course of trial, the portions marked in the evidence of Jnardhan Lohar (PW 5) have not been exhibited for not being confronted with the investigating officer. The said factum also finds place in the judgment and order passed by the learned Magistrate. It is submitted that the portion marked 'A', 'B', and 'C' in the testimony of Janardhan Lohar (PW 5) has been noticed by the learned Magistrate. If the evidence of Mr. Janardhan Lohar (PW 5) is perused, it can be noticed that, there are formal errors in his testimony in so far as his presence on the spot of incident is concerned. Mr. Janardhan Lohar (PW 5) claims to be an eye witness and the omissions that have already been made by him in his testimony go to the very root of the matter and therefore, with at most importance, it is necessary to confront the IO Mr. Janardhan Pawar (PW 6) with the portion marked 'A', 'B' and 'C' in the testimony of Janardhan Lohar (PW 5) for adjudication of the Appeal pending before the Sessions Court. It is submitted that the learned Metropolitan Magistrate while passing impugned order fails to take into consideration the law settled by Hon'ble Supreme Court as well as Bombay High Court especially dealing with an application moved under section 391 Cr.Pc specially when it concerns with curing technical and formal defects in recording of evidence. In support of aforesaid submissions learned counsel appearing for the petitioner relied upon ratio laid down in the case of Ashok Tshering Bhutia Vs. State of Sikkim reported in CDJ 2011 SC 170, Rambhau Vs. State of Maharashtra, reported in CDJ 2001 SC 294 and Babu Choudhary and Ors. Vs. The State of Bihar and Ors. Reported in SCC Online Jhar 379: (2012) 3 AIR Jhar R 185: 2013 Cri Lj (Noc 37) 14.