The Allahabad High Court while dismissing an application observed mentioning names of all witnesses in FIR or in statements u/s 161 CrPC is not a requirement of law. Such witnesses can also be examined by prosecution with the court’s permission. Non-mentioning of the name of any witness in FIR would not justify rejection of evidence of the eye-witness.
A single-judge bench of Justice Umesh Chandra Sharma passed this while hearing an application under Section 482 filed by Harish Chandra and Others.
The application has been made by the accused applicant to quash the order dated 31/10/2008 passed by Additional Sessions Judge, Shahjahanpur in State Vs Harish Chandra and others, under Sections 304, 323 and 504 IPC Police Station Pobayan, District Shahjahanpur, by which the Trial Court allowed the Application 13-B U/s 311 Cr.PC and summoned Maina Devi and Usha Devi as witnesses.
The facts of the case are that Ramesh Chandra lodged a complaint against Harish Chandra, Matadeen, Sangam and Ram Kumar and after the death of injured Pankaj, the NCR was converted into an FIR U/s 304, 323 and 504 IPC.
The IO recorded the statements of the informant and so called eye-witness Babu Ram and after investigation submitted a charge-sheet against the applicant under the aforesaid sections on 05/05/2007. From the bare perusal of the chargesheet, it is crystal clear that the statement of the Maina Devi and Smt Usha Devi were neither recorded U/S 161 CrPC nor a single word is mentioned in the case diary regarding their presence at the alleged place of incident that’s why their name have not been mentioned in the list of witnesses.
On 06/05/2008 both the proposed witnesses moved an application U/s 311 CrPC before the Additional Sessions Judge, Shahjahanpur with the prayer that on 02/04/2007 at the time of the incident they were with Pankaj and they received injuries during the course of saving the deceased, they are the injured eye witnesses and were medically examined on 05/04/2007 in PHC. Original injury reports had been taken by the police. Police did not make them (injured) witnesses under the connivance of the accused persons. Accused are influential persons who have got all the witnesses hostile. Therefore, for the just decision of the case, the applicants are summoned as witnesses.
An objection was invited and considered and thereafter by the impugned order, application 13-B has been allowed by the trial court concluding that there is injury report in support of the application under Section 311 CrPC. For just decision of the case, any witness can be examined or re-examined at any stage U/s 311 CrPC and any person can be summoned for evidence.
The Additional Sessions Judge has wrongly and illegally allowed the application and summoned them as witness which is highly unjust, improper and against the correct provision of the law. Hence, the application be allowed and the impugned order be quashed.
The Court said,
From the above, it is very much clear that there are two parts of this Section. According to first part of the Section, the Court can exercise the power :-
(1) to summon any person as a witness, or. (2) to examine any persons in attendance, though not summoned as a witness, or, (3) to recall and re-examine any person already examined.
The second part, which is mandatory and imposes an obligation on the Court:- (1) to summon and examine, or (2) to recall and re-examine any such person, if his evidence appears to be essential to the just decision of the case.
The High Court further said that the trial court has ample power to summon any person as witness for the just decision of the case. In this case when according to the proposed witnesses they had received injuries with the deceased on and at the time of the incident and they had also been medically examined even then their statements had not been recorded by the IO and in spite of getting their medical report, the same has not been annexed with the charge sheet and when there is serious allegation against the IO that he was under the connivance with the accused persons that’s why they (the alleged injured eye witnesses) had not been mentioned as witnesses to weaken the prosecution case, this court is of the view that in the aforesaid circumstances it was bounden duty of the court to summon and examine the aforesaid witnesses. In the aforesaid circumstances the trial court has rightly allowed the application and ordered to examine the applicants for just decision of the case.
“Thus, it cannot be said that by passing such an order the trial court is trying to fill up the lacuna of the prosecution. The impugned order is based on sound and cogent reason. The applicants could not establish any ground on which basis this court may exercise its inherent jurisdiction as the impugned order is not the abuse of the process of the court. Hence the application is liable to be rejected,” the Court observed while dismissing the application.