Calcutta High Court Sukhendu Sur-vs-State Of West Bengal And Anr. on 2 March, 2007
Equivalent citations:2007 (4) CHN 440
Author: P Sinha
Bench: P Sinha
P.N. Sinha, J.
1. This revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure (in short the Code) is directed against the order No. 151 dated 6.01.07 passed by the learned Additional Sessions Judge, Fast Track, 1st Court, Contai in S.T. No. VII/January/2004 thereby rejecting the prayer of the accused persons for further cross-examination of 19 prosecution witnesses as mentioned in the petition dated 2nd January, 2007.
2. Mr. Ganesh Maity, the learned Advocate for the petitioner submitted that concerning unnatural death of Soma Sur there was a U.D. case started by the Contai P.S. and subsequently specific case under Section 302/304B of the IPC was started and the chargesheet was submitted. The place of occurrence is the Contai Co-operative Bank quarter and at top floor of quarter situated at Contai. According to prosecution case the victim was allegedly murdered in a bathroom of that quarter. The said quarter was not accessible to common public and only inmates of the quarter had the access inside the quarter. From the evidence of witnesses different place of occurrence came to the picture during trial. On behalf of the accused persons an application was filed praying for local inspection of the place of occurrence which was rejected by the learned Trial Judge. Challenging the said order the petitioner moved this Court in C.R.R. No. 2166 of 2006 and a learned Single Judge of this Court by order dated 12.12.06 allowed the prayer of the accused petitioner for inspection of the place of occurrence. This Court directed the Investigating Officer (in short the I.O.) and the Secretary of the Contai Co-operative Bank to assist the learned Advocate for the accused petitioner to take local inspection of the place of occurrence. Thereafter, the local inspection was made on 23.12.06. The I.O. could not state topography of the bathroom and the quarter and the other police officer also failed to state the topography of the bathroom and the quarter. The photographer who took the photographs of the bathroom and the quarter also could not throw any light in respect of topography of the place of occurrence.
3. Mr. Maity submitted further that during local inspection a scratch mark was noticed at the bathroom though I.O. in his evidence stated that bathroom was totally broken. During inspection it was revealed that evidence of prosecution witnesses are totally different in respect of position and place of the bank quarter, the bathroom in question, the door of the alleged bathroom, the locking arrangement of the bathroom from inside and other topography of the alleged place of occurrence. Accordingly, on behalf of the defence a prayer was submitted for recalling 19 prosecution witnesses whose names were mentioned in the application dated 2.1.07 before completion of cross-examination of P.W. 29. The learned Judge failed to appreciate the legal principles and erred in law by rejecting the prayer of the accused petitioner.
4. Mr. Maity next contended that photograph marked as material exts. II/4 clearly show crack around the latch of the door but P.W. 29 gave a contradictory evidence on this point. The learned Trial Court failed to appreciate that after inspection of the place of occurrence by the Defence Lawyers fruitful cross-examination should be allowed to establish either the possibility of the prosecution case or the possibility of the defence case. The defence could not cross-examine the prosecution witnesses earlier properly in respect of place of occurrence as the learned Defence Lawyers did not visit the place of occurrence earlier. The order of the learned Court is an abuse of process of Court and it should be set aside. The accused will be prejudiced seriously if the prayer of the defence for further cross-examination of the 19 witnesses is not allowed. In support of his contention Mr. Maity placed reliance on the decisions in Ganesh Roy v. State of Jharkhand reported in 2006 Cr. LJ 4198 and Rajesh K. Kondappa v. State of Karnataka reported in 2006 Cr. LJ 1574 and contended that these decisions show the scope of Section 311 of the Code as well as scope of further cross-examination of witnesses.
5. Mr. S. S. Roy, the learned Advocate appearing for the State submitted that paragraphs 5, 6, 7 and 10 of the written objection filed by the prosecution against the petition filed by the accused dated 2.1.07 are very important. This is nothing but an attempt of the accused to prolong the trial by any means. There is no ambiguity in the testimony of the prosecution witnesses concerned and there is no justifiable ground to recall them. The points mentioned in the petition of the defence as well as wrong evidence of the police officers