Section 311 of Cr.P.C. empowers the Court to summon or examine witnesses if their evidence is essential to the just decision of the case, regardless of whether their statements were recorded during investigation.

Anand Pathak, J.

1. The present revision has been preferred under Sections 397, 401 of Cr.P.C. against the order dated 9.6.2016 passed by First Additional Sessions Judge, Bhind in S.T. No.273/2015 whereby the application preferred by the petitioner under Section 311 of Cr.P.C. filed on behalf of prosecution has been allowed.

2. Reason for being crestfallen is the allowance of the application of the prosecution and for calling the witnesses Bhujbal and Maya Devi (father and mother respectively of the victim-Alok). Witnesses Bhujbal as well as his wife Maya Devi are material witnesses because they were eyewitnesses and have seen the incident and their names figures in the FIR.

3. Learned counsel for the petitioner submits that the prosecution has filed the charge-sheet against the present petitioner for alleged offence punishable under Sections 302 and 307 of IPC in alternate 304 and 308 of IPC. The prosecution has completed its part of evidence and no witness has supported the prosecution story therefore to create evidence against the petitioner and to fill up the lacuna of the prosecution, application under Section 311 of Cr.P.C. has been moved for calling the witnesses as mentioned above.

4. According to the learned counsel for the petitioner, the investigating authority has not taken the statement of the witnesses under Section 161 of Cr.P.C. and no role of witnesses in any manner has been referred in the investigation therefore, they cannot be called as witnesses before the Court. He submits that the prosecution, in the charge-sheet, has not referred the name of these witnesses in the list of witnesses. Once, the prosecution witnesses have not supported the prosecution story therefore, to fill up the lacuna, prosecution cannot call the statement of those which have not been taken in the investigation. The petitioner relied upon the judgment rendered by the Supreme Court in the matter of Ramlakhan Singh and others v. State of U.P. reported in 1977 SCC (Cri) 474 as well as the judgment rendered by this Court in the matter of Indrajeet Singh v. State of M.P. reported in 2016(1) Cr.L.R. (MP) 115.

5. On the other hand, learned counsel for the respondent/State, Shri Sundaram, submits that the Court below has rightly passed the order for calling the witnesses as mentioned above. According to him, the name of the witnesses Bhujbal and Maya Devi who happen to be the father and mother of victim-Alok figured in the FIR. They were the persons who were eyewitnesses of the incident. Similarly, in medical report, witness Bhujbal was present in person who recognised the victim. Therefore, he is integral part of the investigation. Therefore he can be called for tendering his statement. No illegality has been passed by the Court below in allowing the application of the prosecution under Section 311 of Cr.P.C. He further submits that in Dehati Nalisi report as well as statement of Roop Singh (PW-3), the name of witness Bhujbal is referred. They were the integral part of investigation. He relied upon the judgment rendered by High Court of Rajasthan in the matter of Om Prakash v. State of Rajasthan, reported in 2003 Cr.L.J. 4704 [2003 Legal Eagle(Raj) 203].

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

7. Perusal of the record indicates that the name of the witness Bhujbal was in the FIR. He was the witness in the medical report wherein he recognised the victim at the time of medical report/post-mortem. Even his name figures in the statement of Roop Singh (PW-3) as well as in Dehati Nalisi report. Beside that he is the father of deceased Alok.

8. It is necessary to reproduce Section 311 Cr. P.C., which is as follows :-

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, though not summoned as a witness, or recall and re-examine any person already examine