The State of Maharashtra vs Hindurao Laxman Salunke and Another

S.S. Parkar, J.—This revision application has been filed on behalf of the State taking exception to the rejection of their application for leave to lead additional evidence made u/s 311 of the Cr. P.C.

The Respondents-accused were facing the charge of murder u/s 302 of IPC in Sessions Case No. 39 of 1989 in the Sessions Court, Satara with regard to the incident dated 8.11.1988 which took place at Koregaon, District Satara. The trial of the case had commenced on 22nd June, 1992 and the prosecution had closed its evidence on 23rd July, 1992. Thereafter the respondents-accused were examined u/s 313 of Cr. P.C. on 19.8.1992. On behalf of Respondent No. 1 accused evidence of defence witness Dr. Budhkarwas led on 21st August, 1992. The said doctor was examined to prove the certificate which was issued by him for the injuries on the person of the said accused allegedly received by him on 8.11.1988 i.e. the date of the incident. The certificate is dated 18th June, 1992. The object of leading the said evidence was to show that the Respondent No. 1 accused had received injuries in the course of the incident for which he was prosecuted for offence of murder and that he had exercised right of private defence.

It is the case of the petitioner-State that the certificate of doctor Budhkar issued on 18th June, 1992 which is annexed as Exhibit "A" to this application with regard to the injuries allegedly received by Respondent No. 1 Hindurao on 8.11.1988 was not even supported by the medical papers. It is the case of the petitioner State that in the cross-examination of the prosecution witnesses the stand of right of private defence was not taken by the accused. The prosecution was taken by surprise when the defence examined Dr. Budhkar to prove that he had received injuries on the date of the incident. In order to show that the accused had not received the injuries on the date of the incident and has taken absolutely false stand, the prosecution wanted to examine two doctors in respect of the injuries received by Respondent No. 1 accused on 17th June, 1987 in Bombay and on 23rd January, 1992 in Koregaon by examining two doctors and producing medical certificate dated 17th Julie, 1987 issued by G. T. Hospital, Bombay and certificate dated 23rd January, 1992 issued by Medical Officer, Rural Hospital, Koregaon, District Satara and also the fact that he was the complainant in Criminal Case No. 1323/P/1987 filed in the Metropolitan Magistrate 4th Court, Girgaum, Bombay, which was compromised. The prosecution, therefore, made an application in that behalf on 24th August, 1992. The defence had objected to the grant of the said application. The learned Addl. Sessions Judge, Satara by his oral order dated 24th August, 1992 rejected the said application on the ground that if the application was allowed it would result in disadvantage to the accused and cause prejudice to him.

Feeling aggrieved by the said order of rejection of their application, the State has preferred this Revision Application.

Section 311 of the Cr. P.C. under which the application was made by the prosecution is as follows :-

Power to summon material witness, or examined person present - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

The above provision gives wide discretion to the Court to summon any witness or recall any witness or examine or re-examine any witness at any stage of the inquiry or trial if his evidence appears to the Court to be essential to the just decision of the case. It is the case of the State that the exercise of right of private defence was taken for the first time on behalf of the accused by examining the defence witness who is a doctor. The doctor had issued certificate on 18th June, 1992 with regard to the injuries allegedly suffered by the Respondent No. 1 accused on 8.11.1988 without producing the case papers in that behalf. There was no occasion for the prosecution to lead any evidence in that behalf to falsify evidence until the defence witness was examined. In my view the learned Addl. Sessions Judge has wrongly held that prejudice would be caused to the accused if the prosecution was allowed to lead that evidence. In my view, in fact, rejection of the application would cause prejudice to the prosecution and result in injustice to the case. The Court has to find out the truth, whether the case of the prosecution is true or that of the accused and, therefore, the evidence which is sought to be led on behalf of the prosecution would be essential to the just decision of the case. In my opinion the learned Addl. Sessions Judge has failed to exercise the jurisdiction vested in him u/s 311 of Cr. P.C. He had wrongly rejected the application of the prosecution to lead the additional evidence. In the facts and circumstances of the case, the application of the prosecution deserves to be allowed.

In the above circumstances, the Revision Application succeeds. The impugned order dated 24th August, 1992 on Exhibit 78 passed by the Additional Sessions Judge, Satara in Sessions Case No. 39 of 1989 is quashed and the application Exhibit 78 preferred by the prosecution in the above Sessions Case is allowed. Since the trial was already delayed owing to the interim stay granted during the pendency of the above revision application in this Court, the Trial Court is directed to proceed further in the matter as expeditiously as possible. The interim stay granted earlier shall stand vacated. Rule is made absolute accordingly. Writ is expedited.