1. Heard learned counsel for the petitioner, learned counsel for the State and opposite party no.2.

2. In this case the petitioner has challenged the order dated 18.6.2011 passed by the learned District and Sessions Judge, Vaishali at Hajipur in connection with Sessions Trial No.423 of 2007 by which the trial court has rejected the prayer of defence to draw the attention of the Investigating Officer on the statements of the witnesses recorded in the case diary.

3. Filtering the unnecessary facts, on the basis of Fardbeyan, the police registered the case against the accused persons under Sections 302, 341, 323, 452 and 379/34 of the Indian Penal Code on the statement of Rabindra Kumar Rai the case has been registered as Raja Pakar P.S. Case No.61 of 2003. In the First Information Report allegation has been made about causing fire arm injuries to the victim ultimately led to his death in the Hospital. Motive behind the occurrence as the victim refused to succumb the pressure of the accused persons to pay the extortion money (Rangdari).

4. The police investigated the case and during investigation recorded the statement of Parwati Devi, Indrashan Devi, Misrilal Rai, Asarfi Rai and Umesh Rai. According to the petitioner their statements are not compatible with the prosecution case. The case was investigated by Sanjay Kumar Singh, the Investigating Officer (P.W.9). During examination-in-chief certain documents part of the case diary were proved which were marked as Exhibits 5, 6 and 7. During cross-examination the defence lawyer drew the attention of the Investigating Officer to the statements of Parwati Devi, Indrashan Devi, Mishrilal Rai, Asarfi Rai and Umesh Rai whose statement was recorded in the case diary but the trial court refused to allow this question to be asked from the Investigating Officer.

5. The court below assigned the reason for refusal to allow this question to be asked to the Investigating officer as Parwati Devi, Indrashan Devi, Mishrilal Rai, Asarfi Rai and Umesh Rai though examined during investigation having not been examined in the court from the side of the prosecution during trial.

6. Learned counsel for the petitioner has raised the grievance that recording of their statement is a fact in issue covered under Section 11 of the Evidence Act. Sections 151 and 152 of the Evidence Act specifically provides the area of prohibition for putting the question to the prosecution witnesses and the court below except those exception specifically mentioned was not justified in prohibiting to ask this question to the Investigating Officer about the recording of statement of the witnesses mentioned therein. In support of his contention he has relied on two judgments (Fatnaya Lal Khan and others Vs. Emperor) A.I.R. 1942 Lahorh 88, and (Mohiunddin Khan and others Vs. The King Emperor) A.I.R. 1924 Patna 829 and claimed that the trial court committed an error in not allowing the question to be asked from the Investigating Officer with regard to the statement of the witnesses recorded in the case diary.

7. Learned counsel for the State vehemently opposed the argument advanced by learned counsel for the petitioner and submitted that the statement recorded by the police having no evidentiary value cannot be called as fact in issue. The statement recorded in the case diary by the police cannot be used by either side for the purposes of proving or disproving the charge against the accused persons but can be pressed in service for attracting contradiction to the statement of witnesses who later deposed before the trial court. Any witnesses who was not examined during the trial cannot be an issue for drawing the attention of contradiction with regard to the statement of the persons recorded in the case diary.

8. Now the question emerges as to whether the trial court was justified in refusing to allow defence to ask or draw the attention of the Investigating Officer with regard to the statement recorded in the case diary of some o