MOHAR SINGH Vs. STATE OF M P

JUDGEMENT

(1.) This revision under Section 397/401 of the Code of Criminal Procedure, 1973 preferred by the petitioner/accused is directed against an order dated 21st October, 2011 in Sessions Case No. 315/01 by the Third Additional Sessions Judge Morena (M. P. ), rejecting thereby an application filed under section 233 of Cr. P. C. by the accused for re-calling Jai Singh Sikarwar (PW-3) as defence witness in the said Sessions trial.

(2.) The brief facts, just for the decision of this case are that in Sessions Case No. 315/ 01 pending before the Third Additional Sessions Judge, Morena against petitioner/accused for commission of offence punishable under Section 304-B of I. P. C. for causing dowry death of Smt. Suman and/or alternatively for commission of offence punishable under Section 302 of I. P. C. for causing murder of Smt. Suman. During trial of the said case, Jai Singh Sikarwar (PW-3), father of the deceased and Smt. Shashi Sikarwar (PW-6), mother of the deceased were examined as prosecution witnesses by the trial Judge. During the course of trial, the accused filed the affidavits of aforesaid two witnesses Jai Singh Sikarwar and Smt. Shashi Sikarwar sworn in favour of the accused. It is further mentioned that under pressure of police authorities the witnesses made the statements against the in-laws of her deceased-daughter. Now, they intend to place the true facts on record before the trial Judge. Thereafter, at defence stage, the accused/petitioner filed the application under Section 233 of Cr. P. C. for summoning Jai Singh (PW-3) as defence witness. The said application was rejected by the trial Judge under the impugned order, hence, this revision.

(3.) The contention of the learned counsel appearing for the petitioner is that the impugned order of the trial Judge is neither legal nor proper and without assigning cogent reason, the application of the accused was rejected. It is submitted that the witnesses who filed their affidavits before the trial Judge are material for proving the defence of the accused and without examining them the defence of the accused will be adversely affected. In support of his submissions, he placed reliance on the decisions in the cases of Harbhajan v. State of M. P., 1989 JabLJ 217 and Heeralal v. State of M. P., 1998 CrLJ 2585. Accordingly, it is prayed that by allowing the revision petition, the learned trial court be directed to allow his application under Section 233 of Cr. P. C. and summon witness Jai Singh Sikarwar (PW-3), who was examined previously as prosecution witness, as defence witness and his statement be recorded.