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Crl.AppealNo.2295-2296of2010

Crl.AppealNo.2295-2296of2010

Crl.A.Nos.2295-2296 of 2010 -194-However, the statement of PW-91 under Section 161 CrPCwas not recorded. The necessary implication of this isthat he could not have been presented as a chargesheetwitness, as his evidence is recorded for the firsttime before the Special Court (POTA). and hisstatement under Section 161 CrPC was not taken by theI.O. However, Brigadier Sitapati, who is the mostimportant witness for proving the recovery of thealleged letters from the pockets of the trousers ofthe fidayeens, was not examined either under Section161 or before the Court.99. It is a settled position of law in the criminaljurisprudence that a witness, whose evidence is placedreliance upon by the Court, has to be examined andquestioned during the course of investigation by thepolice and his name has to appear in the chargesheetso that the accused gets a fair chance to crossexamine such witness. It was held in the case of Ram

Crl.A.Nos.2295-2296 of 2010 -195-Lakhan Singh & Ors. v. State of Uttar Pradesh 55asunder:“37. It is true that no enmity or grudge issuggested against this witness, but we findthat this witness was not even examined by thepolice nor was he cited in the chargesheet. Ina grave charge like the present, it will not beproper to place reliance on a witness who neverfigured during the investigation and was notnamed in the chargesheet. The accused who areentitled to know his earlier version to thepolice are naturally deprived of an opportunityof effective cross-examination and it will bedifficult to give any credence to a statementwhich was given for the first time in courtafter about a year of the occurrence. Wecannot, therefore, agree that the High Courtwas right in accepting the evidence of thiswitness as lending assurance to the testimonyof other witnesses on the basis of which aloneperhaps the High Court felt unsafe to convictthe accused.”The legal principle laid down by this Court in theaforementioned case renders the case of theprosecution with respect to the recovery of thealleged letters from the dead bodies of the fidayeens,55(1977) 3 SCC 268

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