Case Note & Summary
The petitioner, Vijay Panditrao Bodkhe, is accused no.1 in Sessions Case No. 172/2010 pending before the Additional Sessions Judge-2, Aurangabad, for offences under Sections 302, 498A read with 107 and 34 of the Indian Penal Code. The prosecution case is that the petitioner set his wife Geeta on fire at the instigation of his parents. A dying declaration of Geeta recorded on 25-2-2010 at Krishna Hospital is part of the charge sheet. During cross-examination of the Investigating Officer, it was revealed that a statement of Geeta had been recorded earlier on 23-2-2010 by Police Constable L.R. Jadhav. The defence obtained letters written by Constable Jadhav to the Medical Officer and Executive Magistrate, as well as the statement recorded on 23-2-2010. The defence sought to mark these documents as evidence, but the trial court rejected the application, holding that documents cannot be read in evidence unless admitted by the prosecution. This was upheld by the High Court in Criminal Writ Petition No. 1047 of 2013 decided on 29th November 2013. Thereafter, the petitioner made an application (Exhibit 73) under Section 311 of the Code of Criminal Procedure, 1973 to summon Constable Jadhav and the Executive Magistrate as witnesses to prove those documents. The trial court rejected this application by order dated 20-12-2013. The petitioner challenged this order by filing the present writ petition. The High Court held that the trial court's order rejecting the application under Section 311 CrPC was improper. The power under Section 311 CrPC is wide and must be exercised to secure a just decision. The court must consider whether the evidence of the proposed witnesses is essential for a just decision. The trial court had not applied its mind to this aspect. The High Court set aside the impugned order and directed the trial court to decide the application afresh, considering the necessity of the witnesses for a just decision.
Headnote
A) Criminal Procedure - Summoning of Witnesses - Section 311 CrPC - Discretion of Court - The trial court rejected the accused's application to summon two witnesses under Section 311 CrPC without considering whether their evidence was essential for a just decision. The High Court held that the power under Section 311 CrPC is wide and must be exercised to secure a just decision, and the rejection was improper. (Paras 5-7) B) Evidence Act - Dying Declaration - Admissibility - Section 32(1) Evidence Act - The statement of the deceased recorded on 23-2-2010 by a police constable was sought to be brought on record. The court noted that the documents could not be read in evidence unless admitted by the prosecution, but the witnesses who could prove those documents could be summoned under Section 311 CrPC. (Paras 3-5)
Issue of Consideration
Whether the trial court erred in rejecting the application under Section 311 of the Code of Criminal Procedure, 1973 for summoning two witnesses whose evidence was claimed to be necessary for a just decision of the case.
Final Decision
The High Court allowed the petition, set aside the impugned order dated 20-12-2013, and directed the trial court to decide the application (Exhibit 73) afresh in accordance with law, considering whether the evidence of the proposed witnesses is essential for a just decision.
Law Points
- Section 311 CrPC confers wide discretion on court to summon any person as witness if his evidence appears essential to just decision
- court must exercise power when necessary for justice
- rejection of application for summoning witnesses without considering necessity is improper
