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even though the prosecution not examined nor cited as witness, in dowry death case to prove the diary of the deceased , calling for the associate of the deceased as a witness to prove the writing of the diary is not unjust nor it is unwarranted as under sec.311 cr.p.c the court has got power to recall /call any witness at any time pending trial


Cropped screenshot of Tyrone Power from the tr...

Cropped screenshot of Tyrone Power from the trailer for the film Witness for the Prosecution (Photo credit: Wikipedia)







This Criminal Petition is filed by the petitioners/A1 to A3 under Section 482 Cr.P.C., seeking to quash the order dated       01-02-2012 passed by the II Additional Sessions Judge, Madanapalle, in Crl.M.P.No.2 of 2012 in S.C.No.401 of 2010, whereunder and whereby the petition filed by prosecution under Section 311 Cr.P.C. seeking the Court to issue summons to the second respondent herein to speak about the handwriting found in Ex.P-2 diary which includes the suicide note, was allowed.


2.      Heard.

3.      The learned counsel appearing for the petitioners contended that earlier the prosecution filed a petition to examine one Mallikarjuna Reddy, the husband of second respondent and that petition was dismissed by the trial court on the ground that there are no merits and that for examination of wife of the said Mallikarjuna Reddy, the present application is filed and the same was allowed, and therefore, it is nothing but an abuse of process of law. Hence, he prays to quash the proceedings.


4.      On the other hand, the learned counsel appearing for the 2nd respondent contended that the earlier application was dismissed on the ground that the purpose for which the prosecution wanted to examine Mallikarjuna Reddy has not at all been stated, but now in the present application, the purpose has been clearly stated as the proposed witness had acquaintance with the writing found in Ex.P2-Diary and hence, the trial Court has properly exercised its discretion and the impugned order needs no interference by this Court.


5.      The petitioners are tried for the offence under Section 304-B IPC. Admittedly, the second respondent, who is proposed witness is neither examined by the police nor cited as a witness in the Sessions Case.  The prosecution filed an application to examine her as a witness to prove the handwriting of the deceased contained in Ex.P2-Diary and the same was allowed.

Section 311 of Cr.P.C. reads as follows:-

“311.       Power to summon material witness, or examine 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.”

6.      The above Section consists of two parts.  The first part relates to the discretion of the Court to examine any witness, whereas the second part is mandatory when the court comes to the conclusion that it is for a just decision of the case, the witness shall be recalled.  The purpose for which the prosecution wanted to examine Smt.N.Sirisha is to prove handwriting of the deceased contained in Ex.P-2-Diary.  No doubt, she was not examined by the police. The prosecution cannot be denied the examination of a witness whose evidence is relevant for the purpose of deciding the point in Sessions Case.  By allowing a petition to summon a witness, it cannot be said that the other side would not be having an opportunity to cross-examine such witness. For a just decision of the case, examination of witness is imperative to prove the  handwriting of the deceased in Ex.P-2 as the proposed witness had acquaintance with the hand writing of the deceased. The reason given in the application to summon the second respondent was that she used to stay along with the deceased and, therefore, she had acquaintance with the handwriting of the deceased. In the mandatory part of the section, the paramount consideration being the doing of justice to the case, the Court can and ought to examine witness at any stage whenever it considers the evidence essential. So, precisely for that reason, the trial court rightly exercised its discretion in allowing the petition and the discretion exercised by it is not shown to be perverse.  Therefore, it is not a fit case to quash the proceedings.


7.      Accordingly, the criminal petition is dismissed.






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