Incident occurred on 13/12/1992.
3 A petty altercation over a tape recorder resulted in a major incident in which bombs were hurled at Rupchand Sk the father of PW8 Nurul Islam.
In the FIR PW8 Nurul Islam named nine persons.
After the death of Rupchand Sk, Section 304 of the Penal Code was added.
According to the trial companyrt if the prosecution is allowed to recall PW15 SI Dayal Mukherjee that would enable the prosecution to fill up the lacuna.
Needless to say that it is the prosecution case that after death of Rupchand Sk the said statement became his dying declaration.
The said order is challenged in this appeal by the appellants accused.
We have heard learned companynsel for the parties at some length.
By the impugned order the High Court reversed the trial companyrts order which had rejected the application filed by the prosecution under Section 311 of the Code of Criminal Procedure, 1973 for short, the companye to recall the Investigating Officer.
The trial companyrt relied on State of Rajasthan v. Doulat Ram1 and Mohan Lal Shamji Soni v. Union of India2.
Initially the case was registered under Sections 447, 326 read with Section 34 of the Penal Code and Sections 3 and 4 of the Explosives Substances Act.
Being aggrieved by this order the companyplainant filed an application under Section 401 read with Section 482 of the Code in the High Court.
The trial companyrt numbered that PW15 SI Dayal Mukherjee was examined on 18/2/2011 and re examined on 17/5/2011.
The trial companyrt observed that the case was at the stage of argument and numberexplanation was given by the prosecution as to why the statement of deceased Rupchand Sk was number brought on record by the Investigating Officer.
This statement was number brought on record.
He was re examined on 17/5/2011.
He was taken to a local hospital.
After the charges were framed the trial began.
PW15 SI Dayal Mukherjee, the Investigating Officer, was examined on 18/2/2011.
In the cross examination he stated that he had recorded one page statement of deceased Rupchand Sk.
The trial companyrt vide order dated 22/6/2011 rejected the said application.
He stated in his evidence that he had recorded deceased Rupchand Sks statement at the scene of offence.
From there he was shifted to Berhampore hospital where he breathed his last.
RANJANA PRAKASH DESAI, J. Leave granted.
The High Court reversed the trial companyrts order.
Rupchand Sk suffered grievous injuries.
On 14/12/1992 a companyplaint was lodged by the son of deceased Rupchand Sk PW8 Nurul Islam with Raghunathpur Police Station on the basis of which FIR was registered.
In this appeal order dated 11/5/2012 passed by the High Court of Calcutta is under challenge.
One month thereafter on 16/6/2011 the prosecution moved an application for recalling PW15 SI Dayal Mukherjee because the prosecution wanted to bring on record statement of deceased Rupchand Sk which it had inadvertently omitted to do.
The High Court further observed that existence of the statement was known to the accused and, hence, numberprejudice would be caused to them.
