PREM SUBBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The order dated 12th August, 2003 passed by the learned Sessions Judge (S & W), Namchi in Criminal Case No. 7 of 2003 is the subject matter under challenge in this revision petition.

(2.) The facts of the case, in a short compass, leading to the filing of this revision petition are as follows : The petitioner who is the accused person in connection with a Criminal Case No. 7 of 2003 stood trial for offence punishable under Section 307 of the Indian Penal Code before the Court below and the related charge has been framed against the accused- petitioner did not plead guilty, and claimed for trial; the trial Court started examination of as many as prosecution witnesses and, later on, the trial Court below fixed date for examination of the Investigating Officer (I.O.) and, in the mean time, the prosecution filed an application on 12th August, 2003 for examination of a witness, namely, Shri Pern Tshering Bhutia, son of Shri Chadar Bhutia, resident of Siribadam, West Sikkim by stating that the said Pern Tshering Bhutia is a material witness who could not be examined during the investigation of the case and, as such, an opportunity be given to the prosecution to examine the said witness for proper adjudication of the case. The learned trial Court allowed the petition thus affording an opportunity to the prosecution to produce the said witness and the I.O. of the case on the next date for examination vide impugned order dated 12th August, 2003. Being dissatisfied with the impugned order dated 12th August, 2003, the accused-petitioner preferred/filed this revision petition. The accused-petitioner questioned the validity of the impugned order dated 12th August, 2003 with the following grounds as highlighted in the revision petition which is quoted below :

(3.) Supporting the case of the accused- petitioner, Mr. K. T. Bhutia, learned Counsel contended that the prosecution filed the petition under Section 311 of the Cr. P.C. at a belated stage and apart from that the said witness Shri Pern Tshering Bhutia was not examined by the Police under Section 161 of the Cr. P.C. at the time of investigation of the case as the said witness is not a material witness. Mr. K. T. Bhutia, learned Counsel further argued that the prosecution sought for examination of the said witness, namely, Shri Pem Tshering Bhutia so as to enable the prosecution to fill up lacunae/ gaps found in the prosecution evidence and that the said witness is a got-up witness who was not present at all at the relevant time and place of occurrence. The learned Counsel has also relied upon a decision of the Apex Court rendered in Mohanlal Shamji Soni v. Union of India, reported in AIR 1991 Sc 1346 : (1991 Cri LJ 1521).