SC clears decks for JNB Director to appear as witness in murder ca

New Delhi, Aug 20 (UNI) The Supreme Court has cleared the decks for the appearance of Delhi Jal Nigam Board Director S P Marwah as prosecution witness in a murder case which took place during his tenure as Dadra and Nagar Haveli Collector in 1996.

The apex court on August 14 allowed the appeal of Union Territory of Dadra&Nagar Haveli against the Bombay High Court judgment dated October 8, 2004, setting aside the order of trial court, Silvassa, summoning Mr Marwah as prosecution witness after respondent Fatehsinh Mohansinh Chauhan took the plea of alibi saying he was with Mr Marwah in a meeting and not at the spot where the murder took place on April 29, 1996.

Chauhan, a prominent local leader of a political party and one of the nine accused in the case, had earlier, examined deputy collector O P Mshra and R N Parmar, executive and sector magistrate, Dadra to substantiate his plea of alibi.

The respondent, however, opposed the application of the state to summon Mr Marwah as witness on the grounds that it amounted to covering up a lacuna in prosecution case which could not be permitted under section 311 CrPC, which empowered a court to summon anybody as witness at any stage of the trial.

A bench comprising Mr Justice G P Mathur and Mr Justice A K Mathur observed, ''The learned sessions judge rightly observed that the evidence of the collector will not cause any prejudice to the respondent as he had himself pleaded alibi and had led evidence to substantiate the same. We are, therefore, of the opinion that the High Court clearly erred in setting aside the order passed by the trial court, Silvassa. We are clearly of the opinion that in the facts and circumstances of the case, examination of the then collector, Dadra and Nagar Haveli, cannot be termed as filling lacunae in the prosecution case.'' The court was also of the opinion that since the prosecution is usually not aware about the type of defence an accused would take during trial at the time of filing the chargesheet, an application moved by the state to summon a witness after defence evidence has been recorded could not be branded as an attempt by the prosecution to fill in the lacuna.

UNI AKS SC PR RN1241