KADALI MOHANARAO Vs. STATE

JUDGEMENT

(1.) This revision is directed against the order dated 16-10-1997 of the Sessions Judge, East Godavari at Kakinada in Criminal M.P. No 879/95 in Sessions Case No. 313/95.

(2.) The facts giving fact for filing of this revision are as under : The petitioners herein are being tried in S.C. No. 313/95 for the offences under sections498-A and 304-B, I.P.C. The 2nd respondent herein (hereafter referred as respondent) is the father of the deceased Sathya Kumari. The respondent and his wife were examined as PWs. 1 and 2. They did not give any evidence in support of the prosecution and they have been treated as hostile and cross-examined by the Special Public Prosecutor. But, their son was examined as PW-6 and he deposed in support of the prosecution and through him, the documents were also marked. When the matter was at the stage of examination of the accused under Section 313, Cr.P.C., the respondent herein filed C.R.M.P. No. 879/97 under section 311, Cr.P.C. to recall and further examine him and his wife (P.W. 2) or to examine them as Court witnesses, alleging that they were threatened to give false evidence at the instance of the defence counsel and the Special Public Prosecutor and that they are now prepared to putorth the true version with regard to the commission of the offence by the accused. That petition was resisted by the accused contending that it has been filed only to create prejudice in the mind of the Court against the accused and deprive the accused fair trial. The Special Public Prosecutor denied the allegation that he had connived with the defence counsel and forced PWs. 1 and 2 to give false evidence. The counsel for the accused filed 4 documents, two of them being affidavits given by K. Jacob and N. Sriramachandra Murthy and the other 2 are letters addressed to the defence counsel S. R. K. Hanumantha Rao by V. Chandrasekhar, Advocate, Amalapuram and Sri M. S. Kumar, Advocate, Rajahmundry. It is observed by the learned Sessions Judge that the 2 affidavits filed on behalf of the accused disclose that PWs. 1 and 2 had entered into a compromise with the accused and accordingly, PWs. 1 and 2 did not support the prosecution case and that subsequently, there was a breach of compromise and therefore, their son examined as PW-6, supported the prosecution case. The learned Sessions Judge also observed that the letters submitted by the Advocate disclose that the defence counsel S. R. K. Hanumantha Rao had not compelled PWs. 1 and 2 to give false evidence. The learned Sessions Judge held that the evidence of PWs. 1 and 2 is essential for a just decision in the case, as PWs. 1 and 2 are no other than the parents of the deceased, and as the offences alleged against the accused are dowry death and harassment of the deceased and that PWs. 1 and 2 are material witnesses. The learned Sessions Judge also observed that PWs. 1 and 2 were made to give false evidence on account of their circumstances stated by them or under the circumstances stated in the affidavits given by the third parties. Therefore, the learned Sessions Judge exercising his discretion, allowed the petition and ordered for examination of PWs. 1 and 2 as Court witnesses.2A. Challenging the said order, the accused have come up with this revision.

(3.) The learned counsel for the petitioners raised two contentions. Firstly, the petition has been filed to examine PWs. 1 and 2 as Court witnesses at the fag end of the trial i.e., at the stage when the matter is posted for the examination of the accused under Section 313, Cr.P.C. and therefore, the learned Sessions Judge ought not to have exercised his discretion in allowing the petition and thus caused prejudice to the accused. Secondly, PWs. 1 and 2 who were examined earlier did not support the prosecution case and they were treated hostile and cross-examined by the Special Public Prosecutor and if the same witnesses are examined as Court witnesses, it amounts to filling up the gaps in the prosecution case and therefore, the trial Court ought not to have exercised its discretion and summoned the PWs. 1 to 2. The learned counsel for the 2nd respondent as well as the Addl. Public Prosecutor, representing the 1st respondent-State refuted the said contentions and submitted their arguments in support of the impugned order.