The court has the discretion to summon or examine a witness under Section 311 of the Code of Criminal Procedure, 1973 if it deems the evidence of such person to be essential for the just decision of the case.

JUDGMENT :

Ravindra Maithani, J.

The challenge in this revision is made to the order dated 22.12.2022, passed in Session Trial No. 43 of 2021, State v. Premveer and others, by the court of Additional District and Sessions Judge, Ramnagar, District Nainital (“the case”). By it, the application filed under Section 311 of the Code of Criminal Procedure, 1973 by the revisionist has been rejected.

2. Heard learned counsel for the parties and perused the record.

3. The case is based on an FIR lodged on 13.04.2021 by the respondent no.2. According to it, on 13.04.2021, at 02:40 A.M., the applicant knocked at the door of the informant. As soon as the father of the informant opened the door, the revisionist fired at him, which was witnessed by informant and his mother.

4. During trial of the case, statement of PW 2 Smt. Malti Devi, mother of the Informant was recorded. Thereafter, under Section 311 of the Code was filed by the revisionist specifically indicating that following questions are to be asked from PW 2 Smt. Malti Devi :-

(i) What was the length of the gun in feet?

(ii) From what distance, the applicant fired?

(iii) Whether any source of light was available outside the gate?

(iv) What was the motive of firing?

5. State objected to the application moved by the revisionist under Section 311 of the Code. By the impugned order dated 22.12.2022, the application was rejected. The court noted that Smt. Malti Devi had already been examined. The revisionist was given sufficient opportunity to cross-examine her. The question with regard to fire arms could be asked from the police personnels. The court also observed that as far as the motive is concerned, this is an issue relating to arguments. The court also observed that if any opportunity is given to the revisionist, there are chances that PW 2 Smt. Malti Devi may not support the prosecution case.

6. Learned counsel for the revisionist would submit that the questions which are proposed to be asked from PW 2 Smt. Malti Devi are necessary for just decision of the case. He would submit that after all it is a question of life of the revisionist; he has been implicated in a murder case; the court should have best available evidence so as to adjudicate in accordance with law. It is argued that in the charge sheet, reference has been made to a country made pistol by which firing was made whereas, it is argued that Smt. Malti Devi has stated that deceased was fired by a gun. But, the learned counsel would submit that no question with regard to weapon of offence has been asked to her.

7. Learned counsel for the revisionist would also submit that, in fact, initially the family members of the revisionist did not help him to get legal assistance because it was the matter between the relatives, but, subsequently when they realized that the revisionist has been falsely implicated, they provided him legal assistance. It is submitted that earlier the Amicus Curiae did not ask these questions, which were relevant for just decision of the case. Hence, it is submitted that the impugned order deserves to be set aside and the revision allowed.

8. On the other hand, learned State Counsel would submit that PW 2 Smt. Malti Devi is a village woman; she cannot be expected to make any distinction between a gun and a country-made pistol; she is an eye-witness; she has even identified the revisionist by voice, because they are relatives. Hence, it is argued that the application under Section 311 of the Code has rightly been rejected.

9. Section 311 of the code is a provision by which a witness may be further examined or a person may be summoned as a witness, if it appears to the court that evidence of such person is essential for the just decision of the case. Section 311 of the Code provides as hereunder:-

“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