Joymalya Bagchi, J. - (1.) Order dated 7th March, 2017 passed by the Additional Sessions Judge, Fast Track Court III, Howrah in connection with Sessions Trial no. 158 /15 refusing to summon one S. Maity as court witness in order to prove sale receipt of one Nokia Lumia mobile phone and fixing the date for examination of the opposite parties-accused persons under Section 313 of the Code of Criminal Procedure has been assailed before this Court by the petitioner-defacto complainant.
(2.) The prosecution case as alleged against the opposite party nos. 2 to 5 herein is to the effect that they had committed dacoity on 1st January, 2016 at 6.30 p.m. at the place of business of the petitioner and had stolen a sum of Rs.22,000/- and other articles including one Nokia mobile phone. It is also the prosecution case that in course of investigation on the leading statement of the opposite party no. 4 a mobile phone had been recovered under seizure list being Exhibit 2/3. Such seizure was duly reported to the learned Magistrate and on the prayer of the petitioner the mobile phone was returned to him on executing a bond. In course of trial the petitioner was examined as P.W. 1 wherein he deposed that the miscreants had stolen a Nokia Lumia mobile phone and he produced a mobile phone of similar make before the trial Court. The defence objected to the identity of the mobile phone so produced. It was their specific defence that the Nokia Lumia phone produced during trial was not the phone which had been seized during investigation. During his chief, P.W. 1 also produced a sale receipt in support of the purchase of the phone so exhibited which was marked as 'X' for identification. During the examination of the Investigating Officer (P.W. 9), the latter deposed that he had collected the purchase receipt of the mobile phone from P.W. 1 during investigation. In cross-examination he, however, admitted that he did not mention the model number of the mobile phone in the seizure list. He also did not collect IMEI number and CDR of the seized mobile. After the prosecution evidence had been closed, the petitioner as well as the prosecution preferred applications for examining one S.K. Maity to prove the purchase receipt of the mobile phone. In view of the dichotomy of evidence of P.W. 1 and the seizure list, the trial Court did not accede to such prayer and proceeded to the next stage of trial. At that stage, the petitioner has approached this Court praying for examination of the said witness to prove the alleged purchase receipt of the mobile phone.
(3.) Learned counsel for the petitioner submits that the application for examining the said witness had not been disposed of on merits but was kept on record. It has also been argued that the Nokia Lumia mobile phone was produced before the Court during trial and had been exhibited as a material exhibit. Hence, prayer to prove the purchase receipt of such phone was in aid of the prosecution case and not an exercise to fill up the lacuna in the said case.;