1. Rule.
Learned APP Mr. Jani waives service of Rule on behalf of the State.
2. This application is filed by the petitioners to challenge the order passed below Exhibit 82 dated 16.12.2011 passed by the learned 8th Additional District and Sessions Judge, Vadodara.
3. Learned advocate Mr. Gurjar appearing on behalf of the petitioners submitted that the order passed below Exhibit 82 is not just and proper and contrary to the principle of law of equity and natural justice. He also submitted that the trial Court has wrongly dropped the material witness No.8 Mehmudaben Ibrahimbhai, of the charge-sheet. The said witness is only witness of incident, as she reached first at the spot of incident. She extinguished the fire and tried to save the life of the deceased. Even she talked with the deceased during the treatment. Learned advocate further submitted that other witness of the charge-sheet are related witnesses, who reached at the hospital after 3 to 4 hours of the incident. There is no eye witness and there is also no any independent witness like neighbours. Learned Prosecutor before the lower Court filed closing pursis before that Court. He also submitted that the matter is now pending before the lower Court for further statement under Section 313 of the Code of Criminal Procedure. He also read the provisions of Section 311 of the Code of Criminal Procedure. He lastly submitted that the order of the learned trial Judge is required to be quashed and set aside.
4. Learned APP Mr. Jani submitted that the learned Prosecutor before the lower Court has filed closing pursis, which is observed by the lower Court in its order and submitted that the witness which is cited by the present petitioner, is relative of the petitioner and due to that reason, the prosecution has not examined that witness as witness of the prosecution. Learned APP further submitted that in the provisions of Section 311, the word "may" is used and even the learned trial Judge has considered that issue in the said order.
5. Learned APP Mr. Jani relied upon the decision of Janakbhai Kanubhai Thakkar and Ors. Vs. State of Gujarat reported in 2006(3) GLH 317, this Court observed that those witnesses can be cited as defence witnesses by defence after the further statements of accused are recorded under Section 313 and can be examined. He also submitted that learned prosecutor before the lower Court has right to examine the witness from the list of charge-sheet and the accused has no right to say that the prosecution is duty bound to examine the witness from the list of charge-sheet. It is right of prosecutor to drop the witness when he has made issue regarding integrity of witness. In the present case, it is observed that the said witness is related to present petitioner and due to that reason, she was not examined.
6. Perused the application along with papers. I have also perused the order of the learned Magistrate and due to relative of the present petitioner, the witness No.8 of the charge-sheet, Mehmudaben Ibrahimbhai. Therefore, the prosecution before the lower Court dropped such witness. Therefore, I do not find any substance in the Revision Application, and hence, same is dismissed. It is pertinent to note that the petitioner has right to move before the lower Court for examination of such witness as defence witness. Rule is discharged.
(Z.K.SAIYED,J.) ynvyas Top