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2005 DIGILAW 42 (GUJ)

GIRISHBHAI KARSANBHAI VANKAR v. STATE OF GUJARAT

2005-01-25

D.N.PATEL

body2005
D. N. PATEL, J. ( 1 ) RULE. Ms. Manisha Lavkumar, learned APP waives service of Rule on behalf of respondent. ( 2 ) THE present application has been preferred seeking writ of certiorari and for quashing and setting aside the order passed by the learned Additional Sessions Judge, Dhangadhra below Exh. 83 in Sessions Case No. 5 of 2001 dated 4th January, 2005, whereby the application of the present petitioner to examine the doctor as defence witness was not allowed. ( 3 ) MR. HRIDAY C. Buch, the learned counsel for the petitioner has mainly submitted that it is a matter of right vested with the petitioners under Section 233 of the Code of Criminal Procedure ( for short "cr. P. C.) to examine the witnesses in defence. The present petitioners are not examining the witnesses for nothing but there is specific purpose for examining the witnesses for pointing out discrepancies between the injuries and the weapons collected by the prosecution during the investigation of the case and therefore, the order passed by the learned Additional Sessions Judge, Dhangadhra below Exh. 83 in not allowing a Doctor to be examined as defence witness, is dehors the facts and law and deserves to be quashed and set aside. ( 4 ) I have perused the order passed by the Addl. Sessions Judge. Looking to the facts and circumstances of the case, it is an admitted fact that the original offence registered against the present petitioner is under Section 307 of the Indian Penal Code. The injured eye witness has already been examined and cross examined by the present petitioners. Similarly, there are as many as four other doctors have also been examined as prosecution witnesses as PW-I, PW-II, PW-III and PW-IV below Exh. 23, 25, 27 and 28. Medical Certificates at Exh. 24 and 26 have already been given Exhibit numbers. Enough and adequate opportunities for cross examination were offered and availed by the present petitioners. Whatever the discrepancies between the injuries and the nature of weapons, could have been matched during the course of cross examination of said four prosecution witnesses who were doctors. Similarly, upon request of the present petitioners under Section 233 of the Cr. P. C. , the present petitioners have already examined one more Doctor at Exh. 80 as defence witness. Whatever the discrepancies between the injuries and the nature of weapons, could have been matched during the course of cross examination of said four prosecution witnesses who were doctors. Similarly, upon request of the present petitioners under Section 233 of the Cr. P. C. , the present petitioners have already examined one more Doctor at Exh. 80 as defence witness. The list of the Doctors examined by the prosecution as well as by the defence with their exhibit numbers are as under :- Sr. No. Name of Doctor Witness No. Exh. Remark 1. Dr. Lakshmanbhai G. Vegada 1 23 Med. Certi Medical Officer, Govt Hospital Exh. 24 Dhangadhara 2. Dr. Bhavin S. Shah 2 25 Med. Certi Medical Officer Exh. 26 Civil Hospital, Ahmedabad 3. Dr. Ramniklal Gordhanbhai 3 27 Thanki, Medical Officer Gandhi Hospital, Surendranagar 4. Dr. Ashwinkumar Shankardan 4 28 Gadhvi, Medical Officer, Private Practitioner. Defence Witness 5. Dr. Brijeshsinh Gopalsinh Defence 80 Medical Officer. Witness-2 ( 5 ) THUS, for the injuries upon the injured eye witness, as many as four Doctors have been examined by prosecution and the opportunity of cross examination was also offered to the present petitioners for those four Doctors. Even the present petitioners have examined one more Doctor i. e. 5th Doctor as defence witness. At length, cross examination has been taken by the present petitioners of the prosecution witnesses. Initially, application below Exh. 72 was given by the present petitioner in Sessions Case No. 5 of 2001 under Section 233 of Cr. P. C. was allowed. At that time, the present petitioners wanted to examine only one witness. Whatever was the application, was allowed below Exh. 72. There is once again an application was given under Section 233 of the Cr. P. C. It is clearly observed by the learned Addl. Sessions Judge, Dhangadhra that such type of applications are being preferred by the present petitioners accused for causing delay in deciding Sessions Case No. 5 of 2001. Looking to the facts and circumstances of the case, the nature of allegations levelled against the present petitioners, the injuries and examination of the witnesses, enough number of Doctors have been examined. Sessions Judge, Dhangadhra that such type of applications are being preferred by the present petitioners accused for causing delay in deciding Sessions Case No. 5 of 2001. Looking to the facts and circumstances of the case, the nature of allegations levelled against the present petitioners, the injuries and examination of the witnesses, enough number of Doctors have been examined. In fact, the burden of proof lies upon the prosecution, "affirmanti, non negenti, incumbent onus probatio" (burden of proof lies upon him, who affirms, and not him, who denies), therefore, prosecution has to prove the guilt of the present petitioners beyond reasonable doubt. The prosecution has to examine their witnesses and they have to match injuries with weapons in the hand of the present petitioners i. e. the accused. Looking to the facts of the present case, four Doctors have already been examined as prosecution witnesses and therefore, four times very same opportunities have been given to the present petitioners to clarify the mismatching of injuries and weapons recovered by the prosecution during investigation. Enough is enough. The defence has also examined their own witnesses at Exh. 80 who is also a doctor namely Dr. Brijeshsinh Gopalsinh as fifth witness as defence witness. Thus, action for matching the injuries and the weapons, fifth opportunity was offered during the proceedings of much older case i. e. Sessions Case No. 5 of 2001. In the present case, the injured eye witness is before the Court. The order passed by the trial court is true, correct, legal and in consonance with the facts and law. The learned counsel for the petitioner has also cited judgment between "t. N. JANARDHANAN PILLAI V. STATE, 1992 Cri. L. J. 436. Looking to the facts and circumstances of the present case, they are different than those of the case which is cited before this Court. In the present case, enough and adequate opportunities have been given. Even earlier application of the present petitioners i. e. application below Exh. 72 in Sessions Case No. 5 of 2001 for examination of defence witness under Section 233 of Cr. p. C. was already allowed. Whatever witnesses wanted to be examined by the defence, was already allowed. Another application below Exh. 83 was given, once again to examine one more doctor as defence witness, with a view to delay the trial. 72 in Sessions Case No. 5 of 2001 for examination of defence witness under Section 233 of Cr. p. C. was already allowed. Whatever witnesses wanted to be examined by the defence, was already allowed. Another application below Exh. 83 was given, once again to examine one more doctor as defence witness, with a view to delay the trial. As many as five Doctors have been examined for matching injuries and weapons. Looking to the facts, the order under challenge passed by the trial court is absolutely justified on facts and law. Therefore, I see no reason to exercise the extra ordinary jurisdiction conferred upon this Court under Article 226 and 227 of the Constitution of India to interfere with the order passed by the Addl. Sessions Judge, Dhangadhara dated 4th January, 2005 below Exh. 83 in Sessions Case No. 5 of 2001. There is no substance in the present application and the same is dismissed. ( 6 ) THE trial court shall not be guided by the aforesaid observations about matching of injuries with weapon. Final conclusion shall be arrived at by the trial court at the time of final hearing of Sessions Case No. 5 of 2001. The aforesaid observations are made by this Court so as to point out to the petitioners that there is enough delay in deciding Sessions Case No. 5 of 2001 and enough opportunities have been given for the defence of the present petitioners. None the less the trial court shall come to its own conclusion either for conviction or for acquittal looking to the facts and circumstances of the case. ( 7 ) RULE is discharged. .