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2015 DIGILAW 291 (RAJ)

Sevaram v. State of Rajasthan

2015-02-02

VIJAY BISHNOI

body2015
JUDGMENT 1. - This criminal misc. petition under section 482 Cr.P.C. has been filed by the petitioners being aggrieved with the order dated 14.05.2014 passed by Additional Sessions Judge, No.1, Chittorgarh (for short 'the trial court' hereinafter), whereby the application filed by the petitioners under section 311 Cr.RC. for recalling oi witness has been rejected. 2. The petitioners are facing trial for the offences punishable under sections 147, 148, 149, 307, 323 IPC. As per the observations made by the trial court, the charges were framed against the petitioners on 16.12.2008 and on behalf of the prosecution, as many as 17 witnesses have been examined. The statements of the accused-persons have been recorded under section 313 Cr.P.C. and as the accused-persons have not produced any evidence in defence, the same has been closed and the matter is fixed for : final arguments. 3. Learned counsel for the petitioners has argued that the trial court has illegally rejected the application filed by the petitioners under section 311 Cr.RC. while observing that the same is not maintainable. It is also argued that the application filed by the petitioners for recalling or summoning the doctor, who had initially treated the injured persons at Government Hospital, Chittorgarh, was very much maintainable and, therefore, the impugned order passed by the trial court of treating the application of the petitioners under section 311 Cr.P.C. as not maintainable is liable to be quashed and set aside. The learned counsel for the petitioners has prayed that the trial court may be directed to decide the application filed by the petitioners under section 311 Cr.P.C. on merits while treating it as maintainable. Learned counsel for the petitioners has placed reliance on decision of Hon'ble Supreme Court in Godrej Pacific Tech. Limited v. Computer Joint India Limited, (2008) 11 SCC 108 . 4. Learned counsel for the petitioners has placed reliance on decision of Hon'ble Supreme Court in Godrej Pacific Tech. Limited v. Computer Joint India Limited, (2008) 11 SCC 108 . 4. Learned Public Prosecutor has opposed the prayer of the petitioners and submitted that the trial court has not only decided the application filed by the petitioners under section 311 Cr.P.C. while treating it as not maintainable but also decided the said application on merits after observing that the said application has been filed by the petitioners at a very belated stage and the trial court has also observed that if the petitioners want to produce the doctor, who had initially treated the injured as defence witness, they had an opportunity for the same but they did not avail the same, therefore, the trial court has not committed any illegality in passing the impugned order. 5. Heard learned counsel for the rival parties and perused the impugned order. 6. It is true that the trial court is not right in observing that the application filed by the petitioners under section 311 Cr.RC is not maintainable. Section 311 Cr.P.C. reads as under: "311. Power to summon material witness, or examine persons present. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case." 7. A bare reading of the above provisions makes it clear that a criminal court, at any state of an enquiry, trial or proceeding under this Code, may summon anyone as a witness or examine any person present in the court or recall or re-examine any person, whose evidence has already been recorded. It is further provided that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 8. In view of the above provisions, this Court has no hesitation in holding that the trial court was not right in rejecting the application of the petitioners under section 311 Cr.PC. while treating it as not maintainable. 9. 8. In view of the above provisions, this Court has no hesitation in holding that the trial court was not right in rejecting the application of the petitioners under section 311 Cr.PC. while treating it as not maintainable. 9. However, it appears that the petitioners have moved the application under section 311 Cr.RC. solely on the ground that in the injury reports Ex.P6 and Ex.P7, Doctor Shiv Kumar Garu (PW.6) at Chittorgarh had not recorded the pulse rate, blood pressure, general condition of patients etc. and, therefore, the bed-head tickets of the injured persons prepared at General r Hospital, Chittorgarh be summoned and the doctor, who had treated them may also be summoned as a witness. 10. From the statement of PW.6 Dr. Shiv Kumar Garu recorded on 08.11.2010, it is clear that he was cross-examined by the counsel for the accused-petitioners on the same point and he has specifically stated that in the injury reports Ex.P6 and Ex.P7, he had not recorded the pulse rate, blood pressure and general condition of the injured persons. 11. This Court is of the opinion that when the doctor, who had initially treated the injured persons at Chittorgarh, has already been examined as prosecution witness and the counsel for the petitioners has cross-examined him on the points for which the petitioners have prayed for recalling the witness, the application filed on behalf of the petitioners under section 311 Cr.P.C. for recalling the same witness again is without any substance. The reasons given by the petitioners for recalling the doctor, who had initially treated the injured persons, do not exist because the said doctor has already been examined and cross-examined regarding the fact that he had not recorded the pulse rate, blood pressure and general condition of the patients on the injury reports Ex.P/6 and P/7. When the doctor, who had initially treated the injured persons, has specifically stated that he had not recorded the general condition, pulse rate and blood pressure of the injured persons, then there is no point of summoning the bed-head tickets of the injured persons from General Hospital, Chittorgarh or to summon the doctor again, who had treated them initially. 12. In such circumstances, this Court does not find any merit in this criminal misc. petition and the same is hereby dismissed. 13. Stay petition also stands dismissed.Petition dismissed. *******