JUDGMENT : Hon'ble Dinesh Kumar Singh-I,J. 1. This Criminal Revision has been preferred against the judgment and order dated 7.12.2017 passed by the learned Additional District Session Judge, Court No.1 Jhansi in S.T. No. 257 of 2015 (State vs. Azhar and others) under Sections 149, 302, 500, 506, 34 IPC and 7 Criminal Law Amendment Act, Police Station Kotwali, District Jhansi, arising out of Case Crime No.0157 of 2015 whereby a prayer is made that the said judgment and order dated 7.12.2017 be set aside and court below be directed to summon Dr. R.P. Kala for taking his evidence. 2. It is mentioned in the memo of revision that bare perusal of the postmortem report of the deceased of Mohd. Rashid would show that Dr. R.K. Saxena had made contradictory statement before the court as PW-4 which does not support the postmortem report with regard to injury no. 3. The trial court illegally and arbitrarily rejected the application No.121-B vide impugned order dated 7.12.2017 on the ground that the injuries of 1998 were not related to the present incident. The fire arm which has been recovered is 315 bore by which the incident has been carried out. The statement of Dr. R.K. Saxena has tried to mislead by saying that injury no. 2 is communicating to injury no. 3, which is an old injury which had been treated by Dr. R.P. Kala in the year 1998 as has been admitted by Dr R.K. Saxena in his statement recorded under section 161 Cr.P.C. It is well settled that justice should not only be done but it should appear to have been done. Therefore, in view of the statement of Dr. R.K. Saxena mentioned above, it was necessary to examine Dr R.P. Kala who had treated the deceased Mohd. Rashid in 1998 to prove that the injury no. 3 was an old injury because that would be necessary for proper and just adjudication of the present trial and would be helpful to punish the real culprit who has committed murder of Mohd. Rashid. It is further stated that the revisionist is ready to bear the expenses of the witness Dr R.P. Kala who would be the star witness of the case to ascertain whether the injury no 3 is old one or is communicating to injury no. 2, since 24 pallets have been recovered from injury no. 3. 3. Rashid. It is further stated that the revisionist is ready to bear the expenses of the witness Dr R.P. Kala who would be the star witness of the case to ascertain whether the injury no 3 is old one or is communicating to injury no. 2, since 24 pallets have been recovered from injury no. 3. 3. From the side of the opposite party no.2, Azhar, a vakalatnama has been filed by Sri Amit Daga which is taken on record. No counter affidavit has been filed by him but he has orally made argument opposing the present revision vehemently. 4. Heard learned counsel for the revisionist, learned counsel for the opposite party no.2, learned A.G.A. and perused the record. 5. It is contended by the learned counsel for the revisionist that the post mortem of the deceased would show that he had received five antemortem injuries which were as follows: "i) Incised wound size 3x1 cm, margin clean, sharp, situated 6 cm above from Rt. ear on the Rt. side of skull underlying bone fractured. ii) Lacerated wound size 22x11 cm on left side of skull, 5 cm above from left ear underlying bone fractured, brain matter is coming out. iii) Wound no. 3 is communicating with left side supra clavicular area along Lt. side of neck where 24 pallets of metallic characteristic found. iv) Abrasion size 12.0x0.5 cm over Rt. side anterior abdominal wall 12cm laterally from unbilicus. v) Abrasion size 5.0x0.5 cm over Lt. side of abdomen......." and the cause of death has been recorded due to antemortem injuries. 6. Pointing out the above injuries statement of Dr. R.K. Saxena was read out by the learned counsel for the revisionist which is annexed as Annexure-4, in which he has stated that he conducted autopsy of the dead body of deceased Mohd. Rashid. The 24 pallets which were recovered from behind Lt. side of the neck of the deceased which was an old wound. Thereafter, the attention of the Court was drawn towards the statement given by the witness before court as PW-4, in examination-in-chief wherein he stated as follows:- "....ii) Lacerated wound size 22x11 cm on left side of skull, 5 cm above from left ear underlying bone fractured, brain matter is coming out. iii) Left side supra clavicular area, which was towards Lt. side of neck, was communicating with injury no. iii) Left side supra clavicular area, which was towards Lt. side of neck, was communicating with injury no. 2 where 24 pallets were recovered...." 7. It is argued that the said statement given by the PW-4 was misleading and against the postmortem report because in the postmortem report wound no.3 was recorded as communicating with left side supra clavicular area along left side of neck where 24 pallets of metallic characteristic were found while in the statement recorded above, the said doctor has stated that the place from where 24 pallets were recovered was communicating with injury no. 2. 8. Further, he argued that he had moved an application before the court below for summoning Dr. R.P. Kala in whose supervision the treatment of the deceased was held on 17.12.1998 in Medical College, Jhansi wherein he remained hospitalized in OPD No. 3 for taking treatment for the injuries which he had received of fire arm, to establish that 24 pallets recovered from the person of the deceased were communicating with injury no. 3 and not injury no.2. He has relied upon the law laid-down by Supreme Court in the case of Zahira Habibulla H. Sheikh v. State of Gujarat and others 2004(4) SCC 158 , in which following has been held in paragraph no.46:- "46. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a just decision in the case." 9. He has also relied upon judgment of Punjab and Haryana High Court rendered in Jasbir Kaur and others v. Mukhtar Kaur and another, CRM-M 8821 of 2015 decided on 20.3.2015 wherein in paragraph no. 8 it has been held as under:- "8. He has also relied upon judgment of Punjab and Haryana High Court rendered in Jasbir Kaur and others v. Mukhtar Kaur and another, CRM-M 8821 of 2015 decided on 20.3.2015 wherein in paragraph no. 8 it has been held as under:- "8. It is the settled proposition of law that the Court has ample powers under Section 311 Cr.P.C to summon and examine any person at any stage of the trial. In this regard, the view taken by this Court also finds support from the judgment of Hon'ble Supreme Court in Mohanlal Shamji Soni v. Union of India and another 1991 (Suppl.1) SCC 271. Relevant observations made by Hon'ble Supreme Court in paras 6 to 9 of the judgment in Mohanlal Shamji's case (supra), which can be gainfully followed in the present case, read as under:- Before adverting to the arguments advanced on behalf of the appellant, we would examine in general the scope and intent of Section 540 of the old Code (corresponding to Section 311 of the new Code). Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading 'Miscellaneous'. But the present corresponding Section 311 of the new Code is found among other Sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials'. Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words 'to be' before the word 'essential' occurring in the old Section. This section is manifestly in two parts. Whereas the word used in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Court and enables it 'at any stage of enquiry, trial or other proceedings' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine' any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person, already examined. The second party which is mandatory imposes an obligation on the Court- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. The second party which is mandatory imposes an obligation on the Court- (1) to summon and examine, or (2) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. The very usage of the words such as, 'any Court', 'at any stage', or 'of any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case." 10. Relying upon the above rulings, it is argued by the learned counsel for the revisionist that it was bounden duty of the court below to allow the application of the revisionist for summoning Dr. R.P. Kala to prove the aforesaid point as well as the documents which he has filed with the revision which are at page nos 62 to 65 which are required to be proved by the that doctor to establish that the said injury to the deceased was old and the 24 pallets which have been recovered from the person of the deceased pertained to that injury which was caused in the year 1998. It was the court's duty to summon that witness to arrive at the truth and subserve the ends of justice. There was ample power with the Court under Section 311 Cr.P.C. to call any person as a witness to meet the ends of justice and to avoid miscarriage of justice. 11. On the other hand learned counsel for the opposite party no.2 vehemently opposed the present revision on the ground of maintainability as well as on facts also. There was ample power with the Court under Section 311 Cr.P.C. to call any person as a witness to meet the ends of justice and to avoid miscarriage of justice. 11. On the other hand learned counsel for the opposite party no.2 vehemently opposed the present revision on the ground of maintainability as well as on facts also. As regards it maintainability he has stated that the impugned order is interlocutory order against which no revision would lie and in this regard he has placed reliance upon the judgment of Supreme Court in the case of Sethuraman v. Rajamanickam, (2009) 5 Supreme Court Cases 153 in which an application under section 311 Cr.P.C. for calling appellant for cross-examination was moved which was rejected by the trial court. The High Court in revision allowed the application of respondent without issuing notice to the appellant. It was concluded by the High Court that production of documents would cause no prejudice to the appellant. It was held by the Supreme Court Court that very nature of the document was such that issuing a notice to appellant was imperative. More so because appellant had not been cross-examined in respect of those documents, it was held that the revision of the order in question was barred under Section 397 (2) Cr.P.C. Accordingly, the order of High Court was set aside. 12. It is further argued by him that the revisionist had ample opportunity to cross-examine PW-4 before the court below to get the clarification in respect of alleged contradictory statement. The said opportunity was not availed by the revisionist nor any application was moved before the court below from his side saying that there was contradictory statement made by PW-4 in respect of injury nos. 2 and 3 of the deceased which needed to be clarified by recalling the said witness. Instead of that the revisionist wants to summon a witness who was not named in the charge sheet by the Investigating Officer nor any document which he now wants to get proved by calling the said witness were handed over to the prosecution/Investigating Agency. Nor the prosecution had provided the copies of these documents to the accused under section 207 Cr.P.C. If without providing any copy of these documents to the accused, the prosecution is allowed to proceed that would cause prejudice to the accused. Nor the prosecution had provided the copies of these documents to the accused under section 207 Cr.P.C. If without providing any copy of these documents to the accused, the prosecution is allowed to proceed that would cause prejudice to the accused. More so, learned counsel for the revisionist is trying to rely on an injury which is admittedly caused in the year 1998 and it is being stated that 24 pallets remained embedded in the body of the deceased for such a long time which were now recovered at the time of his death which is allegedly caused in an occurrence which took place in the year 2015. It is beyond imagination that such number of pallets would remain embedded in the body of the deceased for such a long time and he would survive for so long. The case is at the stage of recording the statement of accused under Section 313 Cr.P.C hence allowing this application would reopen the case which is least desirable. It was further contended that after the defence in cross-examination of witness, PW-4, elicited points in favour of the accused, to make good the deficiency in the prosecution case, no evidence may be permitted to be adduced/brought on record to the prejudice of the accused. 13. The Court has gone through the impugned order. In the said order it is recorded by the court below that Dr. R.P. Kala's name is not given in the list of prosecution witnesses. The injuries allegedly received in the year 1998 and its treatment does not relate to the present occurrence, therefore Dr. R.P. Kala could not be summoned for giving evidence for any injury which has been caused to the deceased other than the injuries which have been received in the present occurrence. From the perusal of the document, it transpires that Dr. R.P. Kala has never treated the deceased Mohd. Rashid in respect of the injuries received in the present occurrence. In the present case the prosecution had to produce evidence of such witnesses only who would depose regarding present occurrence and not in respect of the occurrence which took place in the year 1998 and accordingly, the said application no. 121-B was found to be devoid of merit and rejected and the case was fixed for recording statement of accused under Section 313 Cr.P.C. 14. 121-B was found to be devoid of merit and rejected and the case was fixed for recording statement of accused under Section 313 Cr.P.C. 14. As regards the position of law, this court is satisfied that there is no denying the fact that the Court has ample power to summon a witness under Section 311 Cr.P.C if the statement of such a witness is considered by the trial court to be necessary for just disposal of the case. In the case at hand it is apparent that the court below has passed a very logical and balanced order stating therein that the injuries which were allegedly treated by doctor in 1998 which were allegedly caused to the deceased had no relevance to be proved in the present case by calling the said doctor. As regards clarification required with regard to injury nos. 2 and 3 from doctor who conducted the postmortem, the prosecution/complainant could have cross examined the said witness at length and could have got the doubts removed. A distinct clarification regarding the injuries could have been taken. If the court had denied them any such opportunity upon approaching it, the case would have been different. It is not the case of the revisionist that they had approached the court below for recalling the PW-4 for clarification with regard to injury nos. 2 and 3 of the deceased nor any application appears to have been moved by him before the court below in this regard, instead an application has been moved for calling a doctor who had treated the deceased long back in the year 1998. There is no occasion for calling/summon such a doctor who did not treat the deceased nor conducted the postmortem in respect of the present occurrence. There does not seem to be any infirmity in the impugned order. 15. In view of above discussion and the position of law as laid down in Sethuraman's case (Supra), this revision deserves to be dismissed and is accordingly dismissed.