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2001 DIGILAW 138 (PNJ)

Hari Ram v. State of Haryana

2001-01-25

M.L.SINGHAL

body2001
JUDGMENT M.L. Singhal, J. - This is Crl. Revision against the order dated 8.1.2000 of Additional Chief Judicial Magistrate, Rewari whereby he refused permission to the prosecution to prove report of Dr. Piyush Malik who radiologically examined the injured. 2. Shish Pal, Ranbir Singh and Dalip Singh are facing trial in case FIR No. 169 dated 23.7.1993 under Sections 326/323/34 Indian Penal Code as PS Jatusana for having caused grievous/simple injuries to Hari Ram etc. in furtherance of their common intention which was to cause grievous/simple injuries to them with sharp weapons. Dr. Piyush Malik who radiologically examined, Hari Ram could not be produced because he was reported to have gone abroad and his whereabouts were not known. On 19.8.1999, one PW was present and examined. On 11.11.1999, two PWs were present and examined. No other PW was presented or served. Case was adjourned to 10.12.1999 in the interest of justice. On 10.12.1999, no evidence of the prosecution was present or served. On behalf of the prosecution, it was stated that Dr. Piyush Malik had gone abroad and his whereabouts were not known. On the request of the prosecution that one more last opportunity be given to the prosecution to prove the report as to the radiological examination of the injured by Dr. Piyush Malik, the prosecution was given one opportunity. It was mentioned that it would be last opportunity. On 10.12.1999, in the interest of justice, one more opportunity was given to the prosecution and the case was posted to 8.1.2000 for the evidence of the prosecution. It was mentioned that it would be last opportunity to the prosecution. On 8.1.2000, Additional Chief Judicial Magistrate, Rewari closed the prosecution evidence and refused to grant further opportunity to the prosecution to produce its evidence and recorded the statements of the accused under Section 313 Criminal Procedure Code and posted the case for defence evidence. 3. Learned Counsel for the petitioner Hari Ram submitted that Dr. Piyush Malik, who was cited as a prosecution witness, is practising at Shop No. 5, Convenient Shopping Centre, Bus Stop, DDA Flats, Kalkaji, New Delhi and if one opportunity is allowed to the prosecution, the prosecution will examine him. He submitted that if Dr. Piyush Malik is not allowed to be examined, interest of justice will suffer where the charge against Shish Pal etc. He submitted that if Dr. Piyush Malik is not allowed to be examined, interest of justice will suffer where the charge against Shish Pal etc. accused- respondents is one under Section 326 Indian Penal Code if Dr. Piyush Malik is not examined, this charge will not be sustained as radiological examination of the injured demonstrates that it was fracture, hence grievous injury. He submitted that the prosecution was not at fault. Dr. Piyush Malik was abroad. His whereabouts could not be located, as such the prosecution felt handicapped in producing him. He submitted that Dr. Piyush Malik is an important witness in the trial as he X-rayed the injury of one of the PWs. 4. Shri Hawa Singh Hooda, Senior Advocate, on the other hand, submitted that the State has not come up in revision against this order and Hari Ram has come up in revision. Revision by Hari Ram is not competent. 5. Suffice it to say, Hari Ram is a person interested in the result of the prosecution. Whatever result be, he will be affected. Even otherwise, Shri K.S. Pawar, DAG, Haryana adopted and supported this revision on behalf of the State when it came up for motion hearing on 10.2.2000. He further submitted that the prosecution was given adequate opportunity to bring home to the accused the charge framed against them. If despite having availed adequate opportunity the prosecution was unable to produce its evidence, the prosecution should thanks its stars. Suffice it to say, the prosecution was not at fault if it could not produce Dr. Piyush Malik who was abroad and his whereabouts were not known. Procedure is meant to secure justice to both the parties, that is the State and the accused. In this case, if the prosecution is not allowed opportunity to produce Dr. Piyush Malik, interest of the injured will suffer. The phrase "interest of justice" is applicable to both the parties, i.e. the State and the accused. Court should not do anything which tilts the balance in favour of one party to the detriment of the other. So, this revision is allowed and the impugned order is set aside. Learned trial Magistrate shall allow adequate opportunity to the prosecution/Hari Ram for the production of Dr. Piyush Malik as prosecution witness. Revision allowed.