- (1.) This revisional application is directed against the order dated 17.9.03 passed by the learned Assistant Sessions Judge, 1st Additional Court, Burdwan in connection with Sessions Case No. 18/03 (G.R. Case No. 551 of 1999) thereby allowing petition dated 26.8.03 filed on behalf of prosecution for examining 4 more witnesses whose names were not mentioned in the charge-sheet as witnesses for prosecution.
(2.) Facts of the case as it appears from the materials on record that Memari P.S. Case. No. 69 dated 26.4.99 was started on the basis of complaint/FIR lodged by Smt. Gouri Bag making allegation against these five petitioners to the effect that on 4.12.95 her daughter Anima Bag was married to Prakash Mondal son of petitioner No. 1 according to Hindu rites and customs and at the time of marriage gold and silver ornaments and other articles were given to the bridegroom party. But the in-laws of her daughter started torture on her both physically and mentally demanding more dowry. On 28/29.3.99 one person from Anima's in-laws house came to the informant and informed her that her daughter Anima was attacked with severe diarhoea and has been admitted to Burdwan hospital. Receiving the news she along with others came to Burdwan hospital and found that her daughter was lying dead with severe burn injuries. On the basis of FIR lodged by her the aforesaid P.S. case was started and it ended in submission of charge-sheet. After commitment, the case was transferred to the Court of the learned Assistant Sessions Judge, 1st Additional Court for disposal. During trial all the witnesses as per charge sheet has been examined and cross-examined. Thereafter, on 26.8.03 a petition was filed on behalf of prosecution to examine four more witnesses and the learned Judge by the impugned order allowed the prayer of prosecution, and hence, this revision.
(3.) Learned Advocate for the petitioners contended that the said four witnesses were not cited as prosecution witnesses in the charge-sheet. No copies of there 161, Cr.P.C. statements were supplied to the accused persons. The FIR maker herself was not examined. If the informant herself is not examined how the witness whose name was mentioned in FIR can be examined as a witness to corroborate the evidence of informant. If copies of 161, Cr.P.C. statements of the said witnesses are not supplied to the accused persons, the accused persons would be seriously prejudiced as they would not be in a position to take contradictions from the said witnesses. Power of Court to examine any witnesses under Section 311 of Cr.P.C. cannot be used to feel in lacuna of prosecution case. The order of the learned Judge is without any reason as to why the said four witnesses requires to be examined on behalf of prosecution. Accordingly, the impugned order passed by the learned Judge permitting the prosecution to examine four witnesses should be set aside. In support of his contention he cited the decisions reported in 1991 Cr LJ 1521 and 1987 C Cr LR (Cal) 52.;