E STATE OF MAHARASHTRA...Mr. Sudarshan J. Salunke, Advocate for the PetitionerMr v. M. Chate, APP for

Legal Reasoning

corrected 7wp2054-24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD7 CRIMINAL WRIT PETITION NO. 2054 OF 2024GOVIND SHIVAJIARAO GITTEVERSUSTHE STATE OF MAHARASHTRA...Mr. Sudarshan J. Salunke, Advocate for the PetitionerMr. V. M. Chate, APP for Respondent StateCORAM :Y. G. KHOBRAGADE, J. Dated:16th December, 2024PER COURT :-1.Heard at length Shri Sudarshan Salunke, the learnedcounsel appearing for the Petitioner. Mr. V. M. Chate, the learnedAPP waives notice on behalf of the respondent State. 2.By the present Petition, the Petitioner/accused takesexception to the order dated 29.11.2024, passed below Exh.178 inSessions Case No. 70 of 2014 by the learned Additional SessionsJudge, Ambajogai, District Beed, thereby permitted the prosecutionto call material witness i.e. handwriting expert to prove handwritten suicide note which was seized during course of theinvestigation by the Investigating Officer and was depositedalongwith charge-sheet with Muddemal property of the Court butinadvertently said suicide note was remained to be referred duringthe course of trial.1 of 11 corrected 7wp2054-243. The issue arises for consideration that, whether thepermitting of the prosecution to lead further evidence to provesuicidal note after evidence is closed by the prosecution and afterrecording statements of the witnesses u/s 313 of Cri. P. C., willamount to amount to filling up lacuna by the prosecution ?4. Shri Sudarshan Salunke, the learned counselappearing for the Petitioner vehemently canvassed that, thePetitioner has been charge-sheeted for the offence punishableunder section 306 read with Section 34 of the Indian Penal Code inCrime No. 21 of 2014 registered with the Police Station Ambajogai(City). After framing of charge, the prosecution examined all thewitnesses. On 22.02.2024, the prosecution has filed Pursis Exh.174and closed evidence. Thereafter, on 27.02.2024, the statement ofthe accused is recorded under section 313 of the CriminalProcedure Code. Thereafter, the matter was heard on 28.02.2024.Subsequently, the matter was adjourned on 3/4 dates forcompliance of the order of submitting citation/case laws. However,on 20.03.2024, the prosecution has filed Exh. 178 an applicationunder Section 311 of Criminal Procedure Code and prayed forpermission to recall the material witness/handwriting expert on2 of 11 corrected 7wp2054-24ground that though the purported document was not in custody ofthe prosecution/ I.O., but at the fag end of the trial, theprosecution wanted to prove suicidal note of the deceased, whenthe matter was posted for judgment. However, the learned trialCourt passed the impugned order dated 29.11.2024 below Exh.178without considering scope of section 311 of the Cr.P.C., andpermitted the prosecution to examine the suicide note through thehandwriting expert.5. The learned counsel appearing for the Petitionerfurther canvassed that, when the document/suicidal note was incustody of the prosecution and produced before the Court,however, nothing has been solicited by the prosecution, to provesaid suicidal note of the deceased. However, when the matter islisted for judgment, the prosecution wanted to examine the saidsuicide note/examine the handwriting expert to prove the suicidalnote, which amount to filling up lacuna. Therefore, permitting theprosecution to prove suicidal note at the fag end of trial is notpermissible in the eyes of law.6. In support of this submission, the learned counsel forthe Petitioner relied on Shridhar Waman Surushe Vs.State of3 of 11 corrected 7wp2054-24Maharashtra, 1986 ALL MR OnLine 390, wherein, this Courtdistinguished the decision of the Apex Court in case of JamatrajKewalji Govani Vs. State of Maharashtra, AIR 1968 SC 178 andheld as under:-"The Supreme Court in the aforesaid decision inJamatraj's case has clearly laid down that theprosecution cannot be allowed to rebut the defenceevidence unless the prisoner brings forward somethingsuddenly and unexpectedly. In my view, looking to thefacts of the instant case, the denial of the marriage byaccused with applicant cannot be said to be sudden andunexpected. Therefore, the permission granted by thetrial Court to recall and reexamine the complainant afterthe close of the trial is apparently to fill up the gap andthis is contrary to the view taken by Supreme Court inthis behalf. It has been clearly laid down that thepurpose of recalling and re- examination of a witness isnot to fill up the gap. It is however to be seen that itdepends on the facts of each case as to whether therecalling and re-examination of a witness is with a viewto fill up the gap in the evidence of a party who invokesthe provision of recalling. Allowing the complainant tore-examine her in the instant case, would clearly amountto permitting her to fill up the gap. A mere look atExhibit 50 would show that she wanted to prove thecontents of a pursis containing conditions ofreconciliation. That by itself, even if proved, may notconstitute a valid proof for her valid marriage with theapplicant. But, by granting permission, it would certainlymean to permit her to fill up the gaps in her prosecutioncase. I am firmly of the view that the trial Court hasclearly committed an error of law in allowing Exhibit 50,by permitting, recalling and re-examination of thecomplainant."4 of 11 corrected 7wp2054-247. The learned counsel for the Petitioner further relied onthe case of Umesh Nanaji Shinde Vs. Moreshwar Namdeo Raut,2007 0Supreme (Bom) 977, wherein it has been held that thecomplainant therein did not made any allegations, that it was notwithin his knowledge and therefore he could not examine thewitnesses earlier. So also, no explanation was offered as to why thedocuments were not produced during recording of the evidence.Under these circumstances, the Coordinate Bench of this Courtheld that, the application for recalling of the witness was filed afterthe statement of the accused was recorded and there were noallegation that the complainant had recently discovered the saidfacts. Therefore, the complainant cannot be permitted to fill up thelacuna.8. Per contra the learned APP canvass that, theInvestigation Officer conducted investigation in Crime No. 21 of2014. During course of investigation, the I.O. seized the suicidalnote of the deceased under the panchnama aslongwith otherArticles. After completion of investigation a chargesheet came to befiled, All seized Articles including Suicidal Note deposited by theInvestigating Officer with Muddemal property with this Court,5 of 11 corrected 7wp2054-24however, during course of trial the prosecution did not noticeabout deposit of suicidal note with muddemal property, hence,said chit could not referred and remained to be proved. Therefore,though the prosecution closed it’s evidence and statement of theAccused recorded u/s 313 of Cri. P. C., still the prosecution havingright to recall the witness u/s 311 of Cri.P. C. Therefore, merely, thelearned trial Court granted permission to the prosecution to provesuicidal note it does not amount to additional evidence or filling ofup lacuna. So also, the petitioner accused will have right to crossexamine the witness, hence, prayed for dismissal of the petition.9. Having regard to the rival submission canvassed onbehalf of the petitioner and the prosecution, I have gone throughthe record. In the case in hand, it prima facie appears that, on04.02.2014, the informant lodged a report and alleged that, herbrother Ashok alongwith his wife and daughter committed suicidedue to instigation of the accused. Her deceased brother left suicidenote. It is matter of record that, during course of investigation, theInvestigating Officer seized said suicide note and other articlesunder the seizure panchnama. After completion of theinvestigation, the Investigating officer filed charge sheet as againstthe petitioner/accused and deposited all seized articles with the6 of 11 corrected 7wp2054-24Muddemal property before the learned Trial Court.10. After going through the impugned order, it apparentthat, the suicidal note of the deceased Ashok was seized by theInvestigation Officer under the seizure panchnama, however, saidsuicidal note was deposited alongwith other seized articles withMuddemal property and said fact did not notice by the Publicprosecution where said suicide note was kept. No doubt, theprosecution filed Exh. 176 Pursis and closed it’s evidence.Thereafter, statements of the accused recorded under section 313of Cr.P.C.. Thereafter, the prosecution filed an Application Exh.178 and prayed for re-call of the witness Hand Writing Expert toprove suicide note. Thereafter the learned Trial Court suo motoinitiated enquiry through the Bench clerk to verify, whether theMuddemal is deposited with the Court and whether the suicidalnote is part and parcel of the said Muddemal property. Andthereafter, it is revealed about finding of seized suicidal note inthe Muddemal Property which has already been deposited.Thereafter, the prosecution moved Exh. 178 an application forexamination of suicide note through handwriting expert. Thelearned trial Court passed the impugned order to provide sufficientopportunity to the prosecution to prove suicide note by examining7 of 11 corrected 7wp2054-24the Hand Writing Expert for the just decision of the case.11. Section 311 of Cr. P. C. provides as under:"311. Power to summon material witness, or examineperson present.- Any Court may, at any stage of any inquiry, trial or otherproceeding under this Code, summon any person inattendance, though not summoned as a witness, or recalland re-examine any person already examined; and theCourt shall summon and examine or recall and re-examine any such person if his evidence appears to it tobe essential to the just decision of the case."12. In Shailendra Kumar-Vs- State of Bihar, AIR 202 SC270, it is held held that, Sec. 311 of Cri. P.C., empowers the Courtto summon material witnesses though not summoned as witnessand to examine or recall and re-examine, if their evidence appearsto it to be essential to the just decision of the case. If there is anynegligence, latche or mistake by not examining material witnesses,the Court’s function to render just decision by examine suchwitnesses at any stage is not, in any way, impaired.13. In Rajendra Prasad-Vs-Narcotic Cell, Delhi, AIR 1999SC 2292=(1999) 6 SCC110, the Hon’ble Apex Court Court heldthat, lacuna does not mean mistake/laches of the publicprosecutor in conducting the case when the public prosecutor had8 of 11 corrected 7wp2054-24closed prosecution evidence without ascertaining whether crossexamination of witness had been done, petition u/s 311 wasallowed for cross examination of the witnesses. Where the publicprosecutor did not summon the witnesses and as such the Courtclosed prosecution evidence, the application filed by the State forsummoning the witnesses u/s 311 Cri. P. C. was entertained.Where the public prosecutor had given up witnesses in attendancein Court and the evidence of the witnesses is necessary for the justdecision of the case, the Court would summon the witnesses u/s311 of Cri. P. C.14. In Mohanlal Shamji Soni Vs. Union of India, AIR 1991SC 1346, the Hon’ble Supreme Court held that, in order to enablethe Court to find out the truth and render a just decision thesalutary provisions of Sec. 311 of Cr.P.C., are enacted where underany Court by exercising its discretionary authority at any stage ofenquiry, trial or other proceeding can summon any person aswitness or examine any person in attendance though notsummoned as a witness or recall or re-exmine any person alreadyexamined who are expected to be able to throw light upon thematter in dispute. Opportunity of rebuttal shall be given to theother party. 9 of 11 corrected 7wp2054-2415. In the case in hand, it is not the case of thePetitioner/accused that the Investigating Officer did not seize thesuicidal Note of the deceased from the spot of incident. Therecord shows that, the Investigating Officer seized said suicidalnote from the spot of incident under the seizure panchnama anddeposited with other property with the charge sheet in theMuddemal property of the Trial Court. It is not in dispute that, thesuicidal note is part of the Muddemal property. However, duringcourse of the trial, neither the Investigating Officer nor theprosecutor noticed about said suicidal note because said suicidalNote was kept with Muddemal Property. Therefore no explanationhas been sought from the concerned witness about the suicidenote, hence, it it remained unproved.16. Needless to say that, fact of seizure of suicidal Noteand it’s production on record of the court with Muddemalproperty, first time noticed by the trial court after the report wascalled through the Bench Clerk. It is not the case of the Petitionerthat, the prosecution is trying to bring a new document i.e.suicidal note for the first time after the evidence is closed but itappears that, due to mistake of the public prosecutor said suicidenote remained to be referred to the witness and not proved.10 of 11 corrected 7wp2054-24Therefore, if the prosecution is permitted to prove said suicidalnote through the Handwriting Expert, no prejudice would cause tothe petitioner/accused because he will have right to cross examinethe said witnesses. Therefore, considering the scope of Section 311of the Cr.P.C., as well as law laid down in the cited cases, merelypermitting the prosecution to prove seized suicidal note does notamount to granting permission to the prosecution to fill up thelacuna. 17. The learned trial Court passed the impugned orderand permitted to call the material witness- Handwriting Expert forexamination in support of the prosecution case, hence, it does notappear perverse, illegal, bad in law. In view of above discussion,the Criminal Writ Petition is hereby dismissed. No order as tocosts.( Y. G. KHOBRAGADE, J. )JPChavan11 of 11