Allowed

Appasaheb Babanrao Yewale v. the State of Maharashtra

Bombay HC3 Apr 2012WP/29/2012

Case brief

AI extract

What is this about?

In a murder trial, the Bombay High Court allowed a criminal writ petition permitting the accused to record deposition on oath and call a defence witness who had been named as a prosecution witness but never examined, distinguishing the Supreme Court judgment in State of M.P. v. Badri Yadav.

What did the court decide?

The Sessions Judge directed to permit the petitioner to examine defence witness Somnath Laxman Yeole and issue witness-summons if necessary.

Appasaheb Babanrao Yewale Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2012)

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CriWP 29/12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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Criminal Writ Petition No. 29 of 2012

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Appasaheb s/o Babanrao Yewale, Age 29
years,OccupationAgriculture,
Resident of Gondi, Taluka Georai,
District Beed

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Petitioner

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V E R S U S

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1 The State of Maharashtra

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Respondents

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2 Vithal s/o Gulabrao Maske, Aged 40 years, Occ. Agriculture, R/o Gondi (Khurd), Taluka Georai, Dist. Beed.

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Mr. N.S. Ghanekar, Advocate for the petitioner
Mr. N.H. Borade, APP for the respondent No.1 / State
Mr. S.S. Pawar, Adv. For respondent No.2

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 CORAM : A.V. NIRGUDE, J.
DATED : 3RD APRIL, 2012

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ORAL JUDGMENT :

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1. By consent of the learned counsel for the
parties, this writ petition is taken up for final
hearing and heard finally.

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2. Rule. Rule is made returnable forthwith.

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3.This petition is challenging the legality and
correctness of the order dated 10th January, 2012,
passed by the learned Additional Sessions Judge, Beed,
below Exh. 185 in Sessions Case No. 95 of 2010.

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2 CriWP 29/12

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4. The petitioner is one of the accused in this case of murder etc. The sessions case is pending since last two years. The prosecution has examined number of witnesses and has closed it’s case. Thereafter, the petitioner’s statement was recorded under Section 313 of Cr.P.C. At that time, the petitioner/accused requested the Court to permit him to record his deposition on oath in his defence and also sought a witness-summons to call a defence witness by name Somnath Laxman Yeole. The learned Judge allowed the application only to the extent of recording of petitioner’s own deposition, but refused to issue summons to the proposed defence witness mainly on the ground that this defence witness was earlier named in the charge-sheet as prosecution witness. This witness was not examined by the prosecution. He never appeared before the Court for recording his deposition in this case. The learned Judge placed reliance on the Judgment of Supreme Court in the case of State of M.P. v. Badri Yadav & Anr. (AIR 2006 S.C. 1769) . The Supreme Court held that a person who is named as prosecution witness in the charge-sheet, cannot be called as defence witness. The learned Judge probably did not understand the ratio of the above quoted Judgment. The Supreme Court was examining a very peculiar case at that time. In the case cited supra , the accused wanted to examine a prosecution witness who had already recorded his deposition as prosecution

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CriWP 29/12

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witness and who was already cross-examined. The
accused, despite of this, requested the Court to issue
witness-summons to such witness utilizing his rights
guaranteed under Section 233 of Cr.P.C. Not only he
made such application, but he even filed affidavit of
such witness, in which contrary statement was made.
The Supreme Court, in such circumstances, held that a
prosecution witness who had already recorded his
deposition in favour of the prosecution cannot be
examined as defence witness. In this case the accused
is entitled to call a person who did not come before
the court as prosecution witness as his witness. The
petition should therefore succeed. The writ petition is
allowed. Rule is made absolute in terms of following
order:

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O R D E R

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The learned Sessions Judge shall permit the
petitioner to examine the defence witness
Somnath Laxman Yeole, and if necessary,
witness-summons be issued.

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( A.V. NIRGUDE, J. )

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SRM/3/4/12 ***

Appasaheb Babanrao Yewale v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Appasaheb Babanrao Yewale v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

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