HARISH CHANDRA PANDA Vs. SARIA ALIAS SARADA DASH

JUDGEMENT

(1.) THIS petition invoking the inherent jurisdiction of the Court has been filed to set aside the order dated 3.6.1 999 passed by the learned Additional Sessions Judge, Jajpur in S.T. Case No. 53 1/98 refusing to recall some of the prosecution witnesses for re -examination in order to prove certain portions of the letters which have already been marked as exhibits.

(2.) THE case giving rise to this petition is as follows : On the information lodged by this petitioner who happens to be the brother of the deceased a case Under Sections 498A. 302, 304B, l.P.C. and Under Sections 3 and 4 of the D.P. Act was registered against the opp. parties 1 and 2 who are respectively the mother -in -law and husband of the deceased. After submission of charge sheet, the case was committed to the Court of Session and is now pending before the learned Additional Sessions Judge, Jajpur for trial. In course of trial while examining the witnesses prosecution proved certain letters said to have been written by the deceased to the petitioner and her mother. Those letters contain certain allegations about the ill -treatment meted out to the deceased by the opp. parties. The said letters have been marked as Exts. 5 to 9. After closure of the prosecution evidence, statements of the accused persons have been recorded Under Section 313, Cr.P.C. and the accused persons have also entered into their defence and cited a defence witness. At this stage, the learned Public Prosecutor filed a petition Under Section 311, Cr.P.C. to recall some of the prosecution witnesses and to re -examine them to prove the contents of the aforesaid letters. The prosecution has also prayed lor a direction to put the incriminating circumstances appearing in those letters to the accused persons giving them opportunity to explain the same as absence of such question is likely to render the judgement bad. After hearing the learned Public Prosecutor and the counsel of the accused persons, the learned Addl. Sessions Judge dismissed the petition observing that since the letters have been proved and exhibited, those are to be used in evidence in their entirety and as such there is no necessity of proving every line of those letters by separate evidence. Ho also observed that whether during examination of the accused Under Section 313, Cr.P.C. on any incriminating circumstance a questions is put or not is not likely to cause any prejudice to the prosecution. Being aggrieved by the aforesaid order the petitioner who happens to be the informant in the said case has filed this petition to set aside the impugned order and to direct the learned Addl. Sessions Judge to recall and re -examine the prosecution witnesses and to put question to the accused Under Section 313, Cr.P.C. relating the incriminating materials appearing in the letters.

(3.) THE second contention of the learned counsel for the petitioner is that the failure to put any question to the accused on the incriminating materials appearing against him giving him an opportunity to explain the same is unfair and is against the interest of justice. In this context. a question arises as to whether at the stage when the opposite parties have already entered upon their defence and cited a witness they can be examined further Under Section 313. Cr.P.C. In the above context, it may be stated that the examination of the accused persons Under Section 313. Cr.P.C. is intended to give him an opportunity to explain any circumstance appearing in the evidence against him. In exercising its power Under Section 313. Cr.P.C. the Court must take care to put to the accused persons all relevant circumstances appearing in the prosecution evidence. It would not be enough to put a few general and particular questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. In the instant case, though the letters exhibited by the prosecution contain incriminating circumstances against opp. parties, they have not asked any question on those incriminating materials to explain the same. Therefore, it cannot be said that the opp. parties are not likely to be prejudiced. That apart, unless the accused persons are given opportunity to explain the incriminating circumstances appearing against them in those letters written by the deceased to her mother and brother containing allegations of ill -treatment, the same is likely to vitiate the trial. The fact that the stage of examining the accused Under Section 313, Cr.P.C. is over and they have already entered upon their defence cannot be a bar against further examination of the accused persons, in view of the principle laid down in Rusi Biswal v. Nakhyatramalini Devi and Ors. reported in AIR 1954 Orissa 65, wherein while considering the scope of Section 342 of the Old Code which corresponds to Section 313 of the New Code it has been held that the section does not limit the power of Court to examine the accused at any particular stage. It can examine him as often as it thinks it is necessary to do so, to enable him to explain any circumstances appearing against him in the evidence. The object of the section is to see whether accused can give innocent explanation of the facts spoken to against him. The Court is not prevented from examining the accused even after the defence evidence has been recorded. In view of the above position of law, the accused persons may be examined further Under Section 313, Cr.P.C. relating to the incriminating materials appearing against them in the letters in question.