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2001 DIGILAW 1656 (RAJ)

Mahendra Singh v. State of Rajasthan

2001-10-10

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - This revision petition has been filed by the petitioner against the order dated 18.9.2001 passed by the learned Addl. Sessions Judge No. 2, Hanumangarh in Sessions Case No. 41/2000 by which the learned Additional Sessions Judge rejected the application dated 9.7.2001 purported to have been filed u/s. 311 Cr.P.C. by which it was prayed that witnesses at serial No. 11 and 15 to 29 mentioned in the charge-sheet filed against the accused-petitioner be summoned. 2. It arises in the following circumstances : (i) On 29.6.2000, one Baint Singh lodged a report at the Police Station Tibi against the petitioners and one Prithvi Singh with the allegations that one Prithvi Singh fired from his gun at Sukhwant Singh who died and these accused-petitioners ordered to shoot the deceased. 3. After usual investigation police filed challan only against Prithvi Singh, but not against the present accused-petitioners. The learned Judicial Magistrate after filing of the challan took cognizance against the present petitioners and thus, these accused-petitioners are facing trial for murder of Sukhwant Singh for offence u/s. 302 IPC along with Prithvi Singh. 4. During trial, the prosecution dropped the witnesses stood at serial No. 11 & 15 to 29. Thereafter an application dated 9.7.2001 purporting to be u/s. 311 Cr.P.C. was filed on behalf of the accused-petitioners with a prayer that the witnesses which were dropped by the prosecution should be summoned and their statements should be recorded in the Court as they are necessary witnesses for just decision of the case. 5. The learned Additional Sessions Judge vide order dated 18.9.2001 rejected that application. 6. Aggrieved from the order dated 18.9.2001, this revision petition has been filed by the accused-petitioners and in this revision petition, the main submission raised by the learned counsel, for the accused-petitioners is that for just decision of the case, evidence of those witnesses which have been left by the prosecution is necessary and, therefore, they should have been summoned and their statements should be recorded by the learned Additional Sessions Judge. 7. On the other hand, the learned Public Prosecutor submits that the order dated 18.9.2001 passed by the learned Additional Sessions Judge does not suffer from any basic infirmity or illegality and the same does not require interference of this Court. 8. I have heard both. 9. 7. On the other hand, the learned Public Prosecutor submits that the order dated 18.9.2001 passed by the learned Additional Sessions Judge does not suffer from any basic infirmity or illegality and the same does not require interference of this Court. 8. I have heard both. 9. In my opinion the discretion lies with the Public Prosecutor to examine or not to examine a witness. It would be unsound to lay down a general rule that every witness mentioned in the first information report must be examined by the prosecution in all the circumstances. The answer to the question as to what is the effect of non-examination of a particular witnesses would depend upon facts and circumstances of each case. 10. It is the right of prosecution to examine as much as witnesses as it requires and nobody can force the prosecution to examine any witness. The Hon'ble Supreme Court in the case of Rajbir v. State of Haryana, reported in 1996 SCC (Criminal) 178 while interpreting Section 231 Cr.P.C. has held that the prosecution is not bound to produce each and every witness of the occurrence irrespective of the consideration' whether such witness is essential to the unfolding of the narrative on which the prosecution case is based. On facts the Hon'ble Supreme Court held that non-examination of some of the witnesses is not fatal. 11. Thus the result of above discussion is that the prosecution is not bound to examine all the witnesses mentioned in the charge-sheet and the accused cannot compel the prosecution to produce the witnesses which have been left by the prosecution. So far as the impugned order is concerned, the learned Additional Sessions Judge has given cogent reasons for rejecting the application filed by the accused-petitioners and there is no basic infirmity or illegality in the impugned order dated 18.9.2001 and this revision petition is liable to be dismissed. 12. So far as law laid down in the case of 1992 Cr.L.R. (Raj.) 802 is concerned, since no hard and fast rule can be laid down, therefore, this authority would not be helpful so far as the facts of the present case are concerned.Accordingly, this revision petition is dismissed after confirming the order dated 18.9.2001 passed by the learned Additional Sessions Judge No. 2, Hanumangarh.Revision petition dismissed. *******