SANJAY Vs. STATE OF HARYANA

JUDGEMENT

(1.) This petition under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) has been filed by petitioner-Sanjay (complainant) for quashing of order dated 13.09.2018 (Annexure P-2) rendered by trial Court, in terms of which, application moved by petitioner through Public Prosecutor under Section 311 Cr.P.C. for permitting prosecution to examine Vishal son of Sanjay as additional prosecution witness in case titled "State Vs. Dharambir and others", FIR No.770 dated 20.09.2015 under Sections 120-B, 201 and 302 IPC read with Section 34 IPC and 25 of Arms Act, Police Station Civil Lines, Gurugram, has been dismissed and consequently prayer to allow said application dated 03.08.2018 (Annexure P-l) under Section 311 Cr.P.C. has been made.

(2.) Application under Section 311 Cr.P.C. (Annexure P-l) was moved by petitioner (complainant) through Public Prosecutor before the trial Court with the averments that during the course of investigation of case FIR No.770 dated 20.09.2015, as detailed above, besides other evidence, supplementary statement (Ex.DC) of PW-8 Sanjay was recorded on 25.09.2015, wherein said Sanjay had categorically narrated that about one and half months prior to the murder of Mohit, an altercation had taken place between Mohit (since deceased) and accused Dharambir, wherein initially Dharambir had slapped Vishal and then in the presence of Mohit (since deceased), Rohit and Arun, above said Vishal had slapped accused Dharambir. At that time, Mohit and Monu, cousin brothers of accused Dharambir and their servants namely Sachin and Raju were accompanying accused Dharambir. Accused Dharambir had proclaimed before Mohit (since deceased) that they had slapped "Thakur" and they have to face consequences. Sanjay (complainant) had further narrated in his supplementary statement that he had every reason to say that accused Dharambir had active role in the commission of murder of his nephew Mohit and since the day of murder of Mohit, accused Dharambir along with his companions was at large. It is further averred that above said version was reiterated by PW-8 Sanjay, when he appeared in the Court as prosecution witness. In view of supplementary statement of Sanjay (complainant), it was incumbent upon the Investigating Officer to join above said Vishal son of Sanjay during investigation and to record his statement but for the reasons best known to the Investigating Officer, no such effort was made at his instance. It is cardinal principle of evidence that the best available evidence should be brought before the Court. Statement of Vishal son of Sanjay as prosecution witness is quite crucial to the cause of prosecution and it is an important link in the chain of circumstances. Thus, it has been prayed that Vishal son of Sanjay be cited as prosecution witness and he may be called and examined as prosecution witness for the ends of justice, fair play and just decision of the case.

(3.) Even though respondent No. 1-State has filed reply to instant petition wherein prayer for dismissal of petition has been made, however, when confronted with above said reply, learned State counsel has emphatically submitted that application in question moved under Section 311 Cr.P.C. presented by petitioner (complainant) before the trial Court, it was well supported by the Public Prosecutor and in this scenario reply dated 20.01.2019 filed in this Court at the instance of respondent-State and that too resisting the cause of petitioner (complainant), said reply appears to have been filed due to some mistake and it may not be read for the purpose of this petition.