The court clarified the discretionary and mandatory aspects of Section 311 Cr.PC, emphasizing the duty of the court to summon and examine essential witnesses for a just decision.

I.A. Ansari, J.

1. The material facts giving rise to the present revision may, in brief, be set out as follows:

(i) The present petitioners are facing, as accused, trial on a charge framed against them under Section 304 read with Section 34 IPC. During the course of the trial, prosecution examined two witnesses, PW1 being a doctor, who claimed to have conducted postmortem examination on the dead-body of Jalaluddin, who had been allegedly killed by the present petitioners in furtherance of their common intention, the accused-petitioner No. 1 being the widow of the said deceased, namely, Jalaluddin @ Bakul Mia. The second witness (PW2) examined by prosecution is Abdul Bari, brother of the said deceased. In his evidence, this witness (PW2) has deposed that accused Mariamun Nessa is the widow of the said deceased, accused Musttafa Ahmed is the husband of his niece and accused Jehirul Islam is his daughter's husband. In his evidence, PW2 has deposed that on the day of occurrence, in the morning, on hearing hue and cry raised from the house of the deceased, when he went there, he found Jalaluddin lying dead with mark of condensed blood on his neck, whereupon police was informed, for, they suspected some foul-play on account of the fact that there were some marks on the neck of the said deceased. It is in the evidence of PW2 that he made enquiries from his two nieces, namely, Farhana Begum and Nazma Begum (i.e., daughters of deceased Jalaluddin) and they told him that their mother, accused Mariamun Nessa, and accused Mustafa Ahmed had strangulated Jalaluddin to death by means of a muffler. According to the evidence of PW2, his said two nieces also told him that their mother, Mariamun Nessa, had threatened to kill them if they disclosed the occurrence to anyone and, therefore, they had not told anyone as to how their father had died. In his evidence, PW2 has clarified that his said two nieces told him about the occurrence after his statement had already been recorded by the police. In his evidence, the doctor deposed that he found eyes and mouth of the deceased closed, tongue protruded, one non-continuous bluish mark around the neck between the chin and cricoid cartilage and there was bluish colouration of the skin at the face, lip and ear. According to the doctor, cause of death of the deceased was suffocation resulting from the injuries sustained.

(ii) After the evidence of PW1 and PW2, as indicated above, was recorded, prosecution filed a petition seeking to get Farhana Begum and Nazma Begum (the two daughters of the said deceased) examined as witnesses on the ground that in the light of the evidence of PW2, the said two daughters of the deceased were eye witnesses to the occurrence and their examination, as witnesses, was necessary for a fair trial. This was objected to by the accused on the ground that (a) the said two daughters of the deceased had not been cited as witnesses in the charge-sheet, that (b) in his statement recorded by police, PW2 had not disclosed about the fact that the said two daughters of the deceased had made any such statement to PW2 as PW2, now, claims to have been made by the said two daughters of the said deceased and that (c) without examining those, who have already been cited as witnesses in the charge-sheet, prosecution cannot be legally allowed to examine the said two female witnesses, whom they have sought to examine by taking recourse to Section 311 Cr.PC.

(iii) By order, dated 21.2.2007, passed, in Sessions Case No. 62/2006, learned Additional Sessions Judge (Adhoc), Karimganj, overruled the objections raised by the defence and decided to examine the said two daughters of the deceased as witnesses in exercise of its powers under Section 311 Cr.PC, the reason shown for such examination being that it is obligatory, on the part of the Court, to summon, examine or re-call or examine any person as witness if his evidence is essential for just decision of a case and that this power to examine a pers