..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3559 OF 2008 Dattatraya Sakharam Khade. ..Applicant. Versus Milankumar Pardeshi and 3 Ors. ..Respondents. .... Mr.M.S.Mohite, Advocate for the applicant. Mr.A.S.Shitole, APP, for State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 16th October, 2008. DATED : 16th October, 2008. DATED : 16th October, 2008. P.C.: 1. Heard the learned Advocate for the Applicant and the learned APP for the State. 2. The applicant-accused is facing prosecution in Sessions Case No.171 of 2004 which is pending before the learned Sessions Judge, Court No.4 at Pune. The said case is under Section 302 of Indian Penal Code. The prosecution case is that one Rajesh Pardeshi came to be murdered infront of Vasant Hair cutting Saloon. In the said case, two eye witnesses have been examined. Thereafter an application came to be preferred by he applicant-accused to examine one ..(2).. Sanjay Bhandari as a Court witness. In the said application, it was requested that the court should exercise its power under Section 311 of Cr.P.C. and issue summons to witness Sanjay Bhandari and examine him as court witness, so that the accused will also get an opportunity to cross examine him and no prejudice will be caused to the prosecution. 3. According to the applicant, the said witness Sanjay Bhandari is an independent eye witness to the incident of murder. Sanjay Bhandari was working in the said Hair Cutting Saloon where the incident took place. Hence, according to the applicant, the said witness is an important and material witness. 4. The said application came to be rejected by the learned Sessions Judge by an order dated 17.9.2008. Hence, this application. 5. The statement of Sanjay Bhandari has been recorded. However, the prosecution did not examine him as an witness. The said application preferred by the applicant was strongly opposed by the prosecution on the ground that the prosecution had already summoned this witness and other persons who at the ..(3).. relevant time were working in the Hair Cutting Saloon. One police constable Mr.Marne tried to serve the witness summons on witness Sanjay Bhandari. However, the police constable found that Sanjay Bhandari and other three persons working in the said Hair Cutting Saloon were roaming with the accused persons, hence, it was evident that these persons were not going to support the prosecution case. Accordingly report came to be filed by police constable Mr.Marne. In view of these facts, Sanjay Bhandari came to be dropped by the prosecution. 6. Mr.Mohite submitted that evidence of Sanjay Bhandari is essential for the just decision of the case as his statement reveals facts which are little different from the facts stated by the other eye witnesses. Mr.Mohite submitted that the second part of Section 311 of Cr.P.C. is mandatory and it provides that the Court shall summon and examine any person if his evidence appears to the Court to be essential to the just decision of the case. In support of this contention, Mr.Mohite has placed reliance on the decisions in the case of (1) Ram Ram Ram Prasad and others vs. The State of U.P. Prasad and others vs. The State of U.P. Prasad and others vs. The State of U.P. reported in (1974) 3 Supreme Court Cases 388 (1974) 3 Supreme Court Cases 388 (1974) 3 Supreme Court Cases 388, (2) Godrej Pacific Godrej Pacific Godrej Pacific ..(4).. Tech Ltd. vs. Computer Joint India Ltd., Tech Ltd. vs. Computer Joint India Ltd., Tech Ltd. vs. Computer Joint India Ltd., reported in 2008 SAR (Criminal) 687 2008 SAR (Criminal) 687 2008 SAR (Criminal) 687, and (3) Dnyandeo Dnyandeo Dnyandeo Pandurang Yadav & Ors. vs. State of Maharashtra Pandurang Yadav & Ors. vs. State of Maharashtra Pandurang Yadav & Ors. vs. State of Maharashtra, reported in 2004 ALL MR (Cri) 1533 2004 ALL MR (Cri) 1533 2004 ALL MR (Cri) 1533. 7. As stated earlier, in the present case, the witness summons had been issued to Sanjay Bhandari. The said witness came to be dropped on account of the report submitted by police constable Mr.Marne. 8. The learned counsel for the applicant submitted that the learned Judge wrongly and erroneously rejected the application by observing that the defence may examine Sanjay as defence witness. He submitted that there is no finding on the issue as to why the Court did not exercise power under Section 311 of the Cr.P.C. 9. In the present case, two eye witnesses have already ben examined. The report of police constable Mr.Marne clearly shows that witness Sanjay Bhandari would not support the prosecution. Hence, no fault can be found with the prosecution for dropping the said witness. ..(5).. 10. In this respect useful reference may be made to the case of Hukam Singh vs. State of Rajasthan Hukam Singh vs. State of Rajasthan Hukam Singh vs. State of Rajasthan reported in [2000] 7 SCC 490 [2000] 7 SCC 490 [2000] 7 SCC 490, wherein the Apex Court has clearly laid down in para No.13 of its judgment that, ‘when the case reaches the stage envisaged in Section 231 of Cr.P.C., the Public Prosecutor is expected to produce evidence ‘in support of the prosecution’ and not in derogation of the prosecution case. If he knows at this stage that certain persons cited by investigating agency as witnesses might not support prosecution case, he is at liberty to state before the court that fact. If that version is not in support of the prosecution case, it would be unreasonable to insist on the Public Prosecutor to examine those persons as witnesses for prosecution’. It was further observed in this authority that, ‘if there are too many witnesses on the same point, the Public Prosecutor is at liberty to choose two or some among them alone. It is open to him to inform the court that he does not propose to examine the remaining persons in that category. This will help not only the prosecution in relieving itself of the strain of adducing repetitive evidence on the same point but will also help the court considerably in lessening the work load’. ..(6).. 11. It was further held that, if the Public Prosecutor gets reliable information that any one amongst the category of independent witnesses, would not support the prosecution version, he is free to state in court about that fact and skip that witness from being examined as a prosecution witness. Then it is open to the defence to cite him and examine as defence witness. 12. In view of the above decision, no fault can be found with the learned Sessions Judge in rejecting the application preferred by the applicant by observing that it would be open to the defence to cite him and examine as defence witness. Application is rejected. 13. At this stage, Mr.Mohite the learned Advocate for the applicant prayed for stay of the trial for a period of four weeks as he intends to approach the Apex Court. In view of this prayer, the trial is stayed for a period of four weeks from today. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)