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High Court Of Rajasthan
Judgename : H.R.Panwar
ARJUN RAM - Appellant
Versus
STATE OF RAJ - Respondent
S. B. Criminal Misc. Petition 751 Of 2005
Decided On : 04/23/2007
Held : As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, rovided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time. (Para 6)
Merely because the petition has been filed by the injured-complainant, it cannot be thrown unheard. For the reasons best known to the prosecution, if it did not produce the material evidence which goes to the root of the case, then the complainant cannot be said to be a person not aggrieved by such an act. I am fortified with my view by the decisions of the Hon’ble Supreme Court in K. Pandurangan v. S.S.R. Velusamy & Anr., (2003) 8 SCC 625. (Para 16)
In the instant case from the material available on record it is clear that the petitioner injured suffered injury on the right bye by gun-shot having suffered numerous pallet injuries and he was referred to the M.D.M. Hospital and S.N. Medical College, Jodhpur where he was examined by Dr. C.P. Swarnkar and report was prepared by him, thereafter he was referred to S.M.S. Medical College and Hospital, Jaipur where he was examined by Professor Dr. T.C. Jain who also made a report and the reports prepared by these doctors are on record and therefore, in order to prove those reports, these two persons are material witnesses and are essential to the just decision of the case. In the circumstances, therefore, the trial court fell in error in declining to summon these two witnesses by the order impugned. The order, impugned, therefore, cannot sustain. (Para 18)
Result : Petition allowed.
H. R. PANWAR, J.
( 1 ) BY the instant criminal misc. petition under Section 482 cr. P. C. , the petitioner complainant has challenged the order dated 14. 7. 2005 passed by Additional Sessions Judge (Fast Track), nagaur (for short the trial court hereinafter) in Sessions Case No. 20/2005 whereby the trial court dismissed the application filed by the petitioner under section 311 Cr. P. C.
( 2 ) I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that the trial court fell in error in not summoning two material witnesses who examined and treated the petitioner complainant for the injuries caused to him by the accused non-petitioner. These material witnesses are Professor Dr. T:c. Jain of Sawal Mansing Hospital, Jaipur and dr. C. P. Swarnkar of Mathura Das Mathur hospital, Jodhpur.
( 3 ) LEARNED counsel appearing for the accused non-petitioner submits that these witnesses have not been cited in the list of witness by the prosecution and therefore, they cannot be summoned or called to prove the investigation carried out by them. Learned counsel has relied on decisions of this Court in Ganpat Ram v. The State of rajasthan1992 Cr. L. R. (Ra.) 602 hanuman Ram v. State of. (Para 3) rajasthan and Ors. 2001 Western Law Cases (Ra.) UC, 621. and in Kailash v. State of Rajasthan and Ors. S. B. Criminal Revision Petition No. 436/03
( 4 ) THE facts giving rise to the instant criminal misc. petition are that a crime report was registered on the Parcha Bayan of the petitioner Ex. P-25 while the petitioner was at hospital at Nagaur. The police ensued the investigation. The injured petitioner was taken to the hospital at jodhpur and thereafter at Sawai Mansingh hospital, Jaipur. The petitioner suffered the following injuries vide Ex. P-14 at the hands of the accused non-petitioner :-
1. Lacerated wound with charred margin bleeding, 5mmx5mm on base of nose near inner can thus of right eye. 2. Lacerated wound with fresh blood, 4mm x 2 mm on neck-5cm above medial end of left claricle. 3. Lacerated wound with fresh blood and charred margin, 3mmx2mm on chest wall, 3cm below middle of left claricle. 4. Lacerated wound with fresh blood, 5mmx2mm on chest wall 3cm below middle of right claricle.
( 5 ) LACERATED wound with fresh blood, charred margin, 2x2 mm on chest wall-7cm below middle of right claricle.
( 6 ) TWO penetrating wound out surface of right shoulder 2x2mm on ant. aspect of right shoulder.
( 7 ) COMPLAIN of decreased vision Rt eye. 5. Initially, the petitioner was examined by Medical Jurist Dr. Dharam chand Bardiya, PW-12 at Nagaur. The petitioner suffered as many as seven injuries including the pallet injury in the right eye. He also suffered gun-shot injuries on the chest and the X-ray report Ex. P-18 reveals that there were multiple pallets in the chest, right shoulder, around chest, right eye and various parts of the body resulting in lose of vision in the right eye as stated by pw-12 Dr. Dharam Chand Bardiya. He stated that he referred the petitioner to jodhpur S. N. Medical College and S. M. S. Medical College, Jaipur vide Ex. P-20. The petitioner was examined by Dr. C. P. Swarnkar of Mathura Das Mathur Hospital s. N. Medical College, Jodhpur as also by the professor T. C. Jain of S. M. S. Medical college and Hospital, Jaipur. The examination record is available on record. Despite the record being available with the police and filed along with the challan papers before the trial court, the doctors who examined the petitioner injured at M. D. M. Hospital, Jodhpur and S. M. S. Medical college and Hospital, Jaipur namely Dr. C. P. Swarnkar and Professor Dr. T. C. Jain have not been included in the list of witnesses. The burden to prove the examination conducted by these two doctors is on the prosecution and unless these doctors are produced to prove the reports prepared by them, it cannot be said that the reports would be deemed to have been proved and therefore, (the injured peti
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