Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 1121 (MP)

Jalam Singh v. State Of M. P.

2011-09-22

U.C.MAHESHWARI

body2011
JUDGMENT ( 1. ) SHRI Shobhit Aditya, learned counsel for the applicants. Smt. Nirmala Nayak, learned Govt. Adv. for the respondent -State. Heard. The applicants - accused have directed this revision being dissatisfied with the order dated 26-8-2011, (Ann. A-3), passed by the Additional Sessions Judge, to the court of VIIth Additional Sessions Judge, (Fast Track Court), Sagar in ST. No. 106/2011, whereby after hearing the final arguments in the matter by allowing the application of the respondent filed under section 311 of Criminal Procedure Code, the opportunity to call and examine the two witnesses namely SHRI J. K. Tiwari and Dr. Rajendra Jain in respect of the x-ray and C.T. Scan reports of the victims, who could not be examined earlier has been extended to the respondents. ( 2. ) THE applicants' counsel after taking me through the papers along with the copy of the impugned application of section 311 of Criminal Procedure Code and the impugned order placed on the record, argued that after closing the evidence, the final arguments were heard by the trial court on dated 17-8-2011 and thereafter the case was fixed on 24-8-2011 for delivery of the judgment. Meanwhile on dated 23-8-2011, on behalf of the respondent, above mentioned application of section 311 of Criminal Procedure Code with a prayer to call and examine the above mentioned witnesses was filed, on which instead to deliver the judgment on 24-8-2011, after supplying the copy of the application the opportunity to file reply was extended to the applicant. In reply by disputing the averments of IA, it is stated that by allowing this IA, the respondent could not be extended the opportunity to fill up the lacuna left by it at the stage of recording the evidence, by calling and examining the mentioned witnesses, the same was not considered with proper approach and contrary to the settled law at the stage of delivery of the judgment of the case by allowing such application, the trial court has given the opportunity to the prosecution to fill up the material lacuna of the prosecution case by examining the above mentioned witnesses. He also said that on disclosing the material lacuna of the prosecution in final argument, just to fill up the same with mala fide intention and to prejudice the rights of the applicants such application was filed. He also said that on disclosing the material lacuna of the prosecution in final argument, just to fill up the same with mala fide intention and to prejudice the rights of the applicants such application was filed. But such aspect was not considered by the trial court with proper approach. With these submissions, he prayed to set aside the impugned order and reject the impugned application of the respondent by admitting and allowing this revision. ( 3. ) KEEPING in view the arguments, advanced by the counsel, I have carefully gone through the entire order sheets of the trial court including the impugned order along with the copy of the application in question. It is apparent fact that the impugned trial is pending against the applicants for the offence under sections 456 and 307/34 of Indian Penal Code and at stage of recording the prosecution evidence, the concerning witnesses namely Dr. J. K. Tiwari and Dr. Rajendra Jain in connection of their x-ray and C.T. Scan reports respectively placed on record along with the charge sheet, were not examined by the prosecution and the evidence of the prosecution was closed. True it is thereafter the accused statements were recorded and after extending the opportunity to the applicant to adduce the evidence in defence the final arguments were heard by the trial court. But before delivery of the judgment, the aforesaid application with the prayer for examination of aforesaid material witnesses in connection of their reports was made on behalf of the prosecution and on consideration the same was allowed. ( 4. ) IN view of the objection raised by the applicants, on examining the case at hand, it is apparent that the concerning x-ray report and the C.T. Scan reports were placed on record as part of the charge sheet but for one reason or another the prosecution did not examine such witnesses to prove such reports on its turn of recording the evidence, but at later stage when this material fact came into knowledge of the prosecution agency in the course of final arguments of the matter, then to prove the aforesaid reports, the permission to examine the above mentioned witnesses was prayed by the impugned application. IN the available circumstances, the examination of such material witnesses in connection of their alleged x-ray and C.T. Scan reports of the victims, which were already on record, could not be termed to be the act of persecution to fill up any lacuna in the case, specially when the case is still pending in the trial court. It is settled proposition of law that to do justice between the parties, the party should be extended the opportunity to adduce evidence in support of their respective case and if some material evidence for one reason or another could not be produced at the appropriate stage of the trial, then before adjudication of the trial at any point of time, if such evidence appears to be necessary in the case, then by invoking the provision of section 311 of Criminal Procedure Code, such opportunity could be extended by the Court to such party. Mere on account of disclosing the defence by the applicants at the stage of final arguments could not be a ground to refuse the aforesaid application for examination of the material witnesses, named above. It is needless to state here that on examination of the aforesaid material witnesses, the applicants will get opportunity of their cross examination and thereafter as per prescribed procedure to produce their defence evidence and also to make the arguments on merit again, thus, it could not be deemed that on examining the aforesaid witnesses, the right of the applicants would be prejudiced in any manner. (5. ) IN view of the aforesaid discussion, I have not found any illegality, irregularity, infirmity or anything against the propriety of law in the order impugned requiring any interference under the revisional jurisdiction of this court. ( 6. ) APART from the above in the light of the law laid down by the Apex Court in the matter of Zahira Habibullah Sheikh vs. State of Gujarat, (2006) 3 SCC 374 also the impugned order does not require any interference under the revisional jurisdiction of this court. ( 7. ) IN view of aforesaid discussion, I have not found any merit in this revision even for admission. Consequently the same is hereby dismissed at the stage of motion hearing. IN view of such dismissal, IA No. 18132/11, an application for interim direction is also dismissed. Revision dismissed.