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Madhya Pradesh High Court · body

2019 DIGILAW 705 (MP)

Rahul Jha v. State of M. P.

2019-10-01

VIVEK AGARWAL

body2019
ORDER 1. This petition under section 482 of CrPC has been filed challenging the order date 28.8.2019 passed by the 9th Additional Sessions Judge Gwalior rejecting an application under section 311 of CrPC filed by the complainant, present petitioner. 2. Brief facts leading to the present petition are that the complainant Rahul Jha had lodged a FIR at Police Station Bijoli, Gwalior registering Crime No.218/2014 on 23.9.2014 under sections 336, 323, 294, 506, 34 of IPC mentioning therein that on 23.9.2014 an incident took place at about 6.30 at village Supavali when complainant was in his field, then accused persons Surendra Laharia and Narendra Laharia reached his field and Surendra Laharia with a view to obstruct his father from cultivating the field, fired a gun shot in the air, as a result of which complainant started running and had fallen down on earth causing injury on his shoulder when Narendra Laharia exhorted to catch hold of him and abused. 3. It is his contention that prosecution has examined Dr.Manish Singh as PW1 and Dr. O.P.S.Chouhan as PW2 and they have not supported his version that he had sustained gun shot injuries. These witnesses were examined on 12.10.2017 and 21.11.2017 and thereafter all the prosecution witnesses were examined including the present petitioner. Defence witnesses were examined and case was closed for final argument when complainant had engaged a counsel namely; Shri Subodh Parashar and when Shri Parashar was preparing the case, such application under section 311 of CrPC was filed on 27.8.2019. 4. Learned counsel submits that since the statements of the doctors are contrary to the version of the complainant, such application should have been allowed and should not have been dismissed in a mechanical manner by learned 9th Additional sessions Judge Gwalior. 5. Learned Panel Lawyer on the other hand submits that in the FIR itself there is no mention of any injury being caused by gun shot and subsequently as an afterthought, to prolong the trial, petitioner has moved an application under section 311 of the CrPC which has rightly been dismissed. 6. Learned counsel for the petitioner. 5. Learned Panel Lawyer on the other hand submits that in the FIR itself there is no mention of any injury being caused by gun shot and subsequently as an afterthought, to prolong the trial, petitioner has moved an application under section 311 of the CrPC which has rightly been dismissed. 6. Learned counsel for the petitioner. at this stage, submits that he was not satisfied with the investigation and had moved an application before the concerned Magistrate for further investigation upon which a report was furnished by the SDOP Behat, Gwalior on 12.4.2017 in which there is a mention of injuries being caused to Rahul Jha from 12 bore gun. 7. However, what has not been explained is that FIR was lodged on 23.9.2014 and if the petitioner was not satisfied with the investigation, then he was not required to wait for over two and half years and merely mention of history of gun shot according to the patient on the MLC report (Ex.P-2) is not the sufficient material to order for recall of the witnesses specially when petitioner remained silent for about two years after examination of material prosecution witnesses. 8. The purpose of section 311 of CrPC is that the Court has been empowered to summon any person as a witness at any stage provided Court is satisfied that there is sufficient ground to summon or recall such witness. Merely for the asking of the complainant because he had engaged a counsel and during preparation that counsel discovered certain lacunae in the prosecution case, provisions of section 311 of CrPC can not be invoked. Petitioner has a remedy elsewhere as provided under the CrPC if according to him witnesses have not been true to their initial version. 9. In view of such facts, I do not find any irregularity or illegality in the impugned order rejecting application under section 311 of CrPC Petition fails and is dismissed. Parties to bear their own cost.