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1986 DIGILAW 228 (ALL)

Nankau v. State of U. P

1986-02-25

PARMESHWAR DAYAL

body1986
JUDGMENT Parmeshwar Dayal, J. - The facts giving rise to this revision are that the revisionists were convicted and sentenced by means of order dated 10.2.86 of the Assistant Sessions Judge, Bahraich. They preferred an appeal which was registered as Criminal Appeal Ho. 46/85 before the Sessions Judge, Bahraich. he Sessions Judge allowed the appeal and sent the case to the Assistant Sessions Judge, Bahraich with he directions to record the statement of the Radiologist and to submit his report with the statement and further documents within two weeks. This order of the Sessions Judge was passed on 7.2.86. The revisionists contended that in view of the provisions of Section 391 (1) Cr.P.C. such directions could not be given to the Assistant Sessions Judge by Sessions Judge and that additional evidence should not have been permitted to be taken on record for filling up a lacuna in the prosecution evidence. In view of the provisions of Section 391 (1) Cr. P.C. the Sessions Judge, Bahraich could direct the Magistrate to record evidence and he was not authorised to direct the Assistant Sessions Judge to record the evidence. As about the permission to adduce further evidence, there is nothing to show that any lacuna in the prosecution evidence was to be bridged. The order dated 7.2.86 passed by the Sessions Judge, Bahraich itself shows that Dr. Smt. Rita Chatterji P.W. 6 rid medically examined the prosecutrix and she had examined the report of the Radiologist on which she had given her opinion regarding the age of the prosecutrix, and the Sessions Judge, Bahraich considered that her statement was not admissible in evidence on the question of age, therefore, the statement of the Radiologist with the help of the X-ray plate should have been recorded. This could be done by the Sessions Judge, Bahraich himself. Accordingly, this revision is allowed and the order dated 7.2.86 passed by the Sessions Judge, Bahraich is set aside, and the Sessions Judge, Bahraich is directed to record the statement of Radiologist himself, if he considers it necessary. Let a copy of this order be issued to the petitioner's counsel today if possible, on usual charges.