- (1.) By way of this petition prayer has been made for quashing the order dated 03.12.2011(Annexure P-1) passed by learned Additional Sessions Judge, Ludhiana, whereby he suo moto ordered that evidence of Ajay son of Harnam Singh, resident of village and post office Chamian, Tehsil Sujanpur Teera, District Hamirpur (HP), was essential for the just decision of the case since he was not examined either by the prosecution or the defence. While issuing notice of motion on December 23, 2011, this court passed the following order:- "Vide order dated December 3, 2011, learned Additional Sessions Judge has summoned Ajay as a Court witness at a stage when the case was fixed for pronouncement of final judgment. No doubt, Section 311, Cr.P.C. gives vast power to a Court to summon any witness at any time if it is necessary for the just decision of the case but at the same time it cannot be ignored that the wide discretion conferred on the Court to summon a witness must be exercised judicially as a wider power, the greater is the necessity of the application of the judicial mind. A perusal of the order dated December 3,2011 does not indicate as to what circumstances weighed with the trial Court to exercise the discretionary power to summon Ajay at the fag end of the trial at the time of final adjudication as a Court witness. Since the accused/ petitioner apprehends that the exercise of judicial power to summon the brother of the deceased might cause prejudice, the exercise of discretionary power has been challenged. In routine, the discretionary power is not interfered with but where the discretion on the face of it is without a speaking order and is prima facie without any reason expressed in the order, the discretion can be questioned. Notice of motion for January 5, 2012. Let a report be called for from the learned trial Judge in a confidential envelop regarding the reasons for summoning of Ajay, the real brother of the deceased, as a witness at the stage when the final arguments have already been heard. Meanwhile, the trial court will not pass the final order on January 3, 2012. This order will not be treated in any manner, to hamper the proceedings in case Ajay is examined on January 3, 2012. His statement recorded be made available by counsel for the petitioner on next date of hearing."
(2.) In compliance of the above order, learned Additional Sessions Judge, Ludhiana, has submitted his report dated 03.01.2012 in a sealed packet. On the last date of hearing, i.e. January 05, 2012, the said envelop containing the confidential report was opened and the report was perused. Learned counsel for the petitioner and Assistant Advocate General, Punjab, sought an adjournment for perusing the report and hence, the matter was adjourned for today, i.e. 12.01.2012 so that they may inspect the file and peruse the report. Learned counsel for the petitioner admits the factum of perusal of the report. Learned Additional Sessions Judge, Ludhiana, has accorded the following reasons:- "1. The FIR dated 5.8.2009 in this case was got registered by Shri Harnam Singh, the father of deceased Munita Devi. He had alleged that the marriage of Munita Devi and Parvesh Kumar had been solemnized about 2-1/2 years prior to the registration of the FIR. However, in their statements in terms of Section 313, Cr.P.C., both the accused have denied that accused Parvesh Kumar ever got married to Munita Devi. 2.It is further submitted that any photograph or video film or the CD of the marriage ceremony was not collected either during the investigation or produced before the Court during the trial. The prosecution has also not produced any documentary evidence or even any bill/cash memo to show the factum of solemnization of the said marriage. 3. As per the prosecution, deceased Munita Devi was residing with Parvesh Kumar at Ludhiana. The version of the defence is that Munita Devi was not the wife of accused Parvesh Kumar, but they had run away from the State of Himachal Pradesh. The prosecution has not collected or produced any evidence from the neighbourhood or the locality to show that Munita Devi was living with Parvesh Kumar as his wife. 4. The only relatives of the deceased examined by the prosecution, are her father Harnam Singh (PW-1) and her uncle Jorawar Singh (PW-2). Both of them have also not mentioned the specific date or place of the alleged marriage of Munita Devi and Parvesh Kumar. 5. A perusal of the file reveals that Harnam Singh (PW-1) had reached Ludhiana after receiving a message regarding her death. He was accompanied by his son Ajay Kumar. The Inquest Report, however, does not contain the name of any of them and the same reveals that the dead body of Munita Devi had been identified by Ramesh Chand son of Late Shri Gorakh Singh, resident of village Chamiana and also by the said Jorawar Singh (PW-2). The evidence available on record also reveals that although Ajay Kumar was present at the time of preparation of various documents by the police, yet he had not signed any such paper prepared by the police. 6. Both Harnam Singh (PW-1) and Jorawar Singh (PW-2) have admitted that Harnam Singh never visited the house of Munita Devi. The evidence available on record also indicates that since Munita Devi had run away against the wishes of her parents, she was also not on visiting terms to her parents. As such, there could be no reason or occasion for her having been subjected to any kind of harassment so as to compel or coerce her to demand anything from her parents. 7. The trend of the questions and the suggestions put to Harnam Singh (PW-1) and Jorawar Singh (PW-2) during their respective cross-examination, reveals that a cousin of Munita Devi was married in village of Parvesh Kumar and as such, they came into contact with each other and ran away against the wishes of their parents. Ajay Kumar was the only person who was in touch with his sister, Munita Devi. Ajay Kumar is also stated to have spoken to Munita Devi on telephone soon before her death. The evidence available on record also indicates that even Ajay Kumar wanted to get married to his beloved against the wishes of his father, but Munita Devi refrained him from doing so and threatened that in case he performed any such love marriage, she would commit suicide because she did not want that her brother should also marry against the wishes of their parents. As such, it has been brought out by the defence that Munita Devi had committed suicide on account of the love affair of her brother Ajay and not on account of being harassed by the accused. 8. A perusal of the file further reveals that the prosecution had not collected any evidence regarding the alleged marriage of Munita Devi and Parvesh Kumar. Initially any one was not cited as a witness regarding the same (kindly refer Annexure-A) but subsequently the police introduced the name of one Ramesh Chand son of Late Gorakh Singh (kindly refer Annexure-B). It has been alleged by the defence that while hurriedly incorporating the evidence to this effect, the prosecution introduced two witnesses having the same name, parentage and particulars, as mentioned at Serial nos. 3 and 10 of Annexure-B. Subsequently the prosecution submitted an application (Annexure-C) to rectify the particulars of Ramesh (shown at Sr.No.10), who is alleged to have introduced later on to give the evidence regarding the marriage of Munita Devi. In the light of the above, it is humbly submitted that to bring on record the evidence regarding the relationship of Munita Devi and Parvesh Kumar as well as to find out the reasons or the circumstances relating to the death of Munita Devi, the evidence of her brother Ajay Kumar was considered to be essential to the just decision of the case. I humbly beg to add that Ajay Kumar appeared to be the best person to depose regarding the above matters, but his evidence had been withheld by the prosecution. My queries had also revealed that the defence had not examined Ajay Kumar because of the fear and the risk that on account of his close relationship with the deceased, he may even depose against the accused. I further beg to submit that not only the offence punishable under Section 304-B of IPC is of very serious nature but the presumption under Section 113B of the Evidence Act also goes against the accused. It was therefore felt necessary that the evidence regarding the factum of marriage of Munita Devi and accused Parvesh Kumar as well as regarding the course or the circumstances leading to the death of Munita Devi, should be brought on record even at the cost of delay, especially with a view to ensure that if the accused were innocent, they were not prejudiced for want of the best evidence, which could bring on the record true circumstances leading to the death of Munita Devi and her relationship with the accused."
(3.) Learned counsel for the petitioner submits that order dated 03.12.2011(Annexure P-1) passed by learned trial court is absolutely against the sprit of Section 311, Cr.P.C. The prosecution cannot be allowed to fill up the lacunae in its case.;