********* This Criminal Revision Petition is preferred against the order dated 5.11.2008 passed in Crl.M.P.No.507 of 2008 in S.C.No.280 of 2007 on the file of I Additional District Sessions Judge (PCR), Thanjavur. By such order, the Lower Court which was trying S.C.No.280 of 2007 for offences under Section 302 and 364 of I.P.C., allowed the recall of a witness and permitted the marking of the bill register and carbon copy of the bill as Exhibit P-54 and 55. The order under challenge is brief and may be reproduced hereunder for an appreciation of the submissions made by the petitioner.
''Prosecution filed a petition to recall the PW-6 and mark register said to be maintained by him in his car centre, notice given to defence counsel, no counter filed, but objected. It is to be noted that prosecution has not seized the above register during investigation. When the witness was examined before this Court when he was cross examined, about the same the witness has spontaneously replied that he has maintained the register, when court questioned him he immediately replied that he could produce the document immediately. Accordingly court directed him to produce the Register immediately to the Court custody to avoid any tampering. The witness immediately after examination produced the register said to have maintained in his car shed. Of course the investigation officer has not seized the register. Same clearly amount to negligence on the part of the investigation officer. However same cannot be taken advantage by accused to prevent the documents being produced by witness who has no interest either on prosecution or defence. It is also the duty of the Court to decide veracity of the witness therefore allowing the witness to produce the register admittedly maintained by him does not prejudice the accused, provided they are given proper opportunity to cross examine the witness. Hence PW-6 is recalled, prosecution is directed to furnish copy of ledger to the accused now itself, since the prosecution has examined all other witness and closed their evidence and the petition is only for limited purpose of marking register, accused objections alone noted. ''
2. The learned counsel for the petitioner submits that not only, is the order which is under challenge bad in law, but that the same is also factually incorrect. The learned counsel referring to the typed set filed along with the petition, submits that PW-6 was examined on 04.11.2008 and the order under challenge reflected a position, as if, on a question put by the Court, PW-6 had informed that he could produce the document immediately, when he was asked to produce the register and that, such witness immediately after examination produced the register. This factually was incorrect. PW-6 having deposed on 04.11.2008 was recalled only on 05.11.2008 and that too on a petition filed by the prosecution towards his recall for production and marking the documents.
3. Pointing out the apparent discrepancy in the order of the Lower Court and submitting that though PW-6 was twice examined by the Investigating Agency, there was no mention whatsoever in such statements regarding the maintenance by him of registers or of his having submitted a bill to the deceased, the learned counsel also drew the attention of this Court to Exhibit P-54 and P-55, to point out that while the bill allegedly issued in respect of the car of the deceased was the carbon copy of the bill dated 24.09.2007 and under No.415, the subsequent bill under No.416, issued to some other person was dated 19.09.2007. It is the argument of the counsel that when the subsequent bill is of a later date, then the Carbon copy of bill No.415, dated 24.09.2007 must necessarily be bogus.
4. The learned counsel impresses upon the Court that a reading of the evidence of PW-6 would show that he was in the habit of issuing bogus bills. Further, he stresses the point that Exhibit P-54 and 55 came to be produced not at the instance of the Court but only at the instance of the prosecution, after closure of evidence of the PW-6 and on the immediate succeeding date, towards filling up the lacuna in the prosecution case.
5. I have heard the learned Government Advocate appearing for the respondent on the submissions made by the learned counsel appearing for the petitioner.
6. The several contentions raised by the learned counsel for the petitioner are such as would require of those which consideration by the Court below at the trial and in arriving at the final decision of the case. It would not be appropriate for this Court to entertain the request for eschewing the evidence of PW-6 tendered on 5.11.2008 or to direct the eschewing from consideration of Exhibit P-54 and 55 at this stage.
7. Accordingly, this Revision shall stand closed. Consequently, connected Miscellaneous Petition is closed. However, it is made clear that all the contentions raised hereinabove, may be raised at the time of trial and the Lower Court in arriving at a final decision shall pay due consideration to such contentions.
vsg To
1. The Inspector of Police South Police Station Thanjavur Medical College Thanjavur
2. The I Additional District Sessions Judge (PCR) Thanjavur
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court Madurai.