The court emphasized the importance of allowing the application under Section 311 Cr.P.C. for further cross-examination in order to explain the injuries suffered by the accused persons.

1. - Heard the learned counsel for the parties.

2. Learned counsel for the petitioner Shri Kharalia submitted that the accused persons suffered injuries and a cross FIR, No. 240/94 was registered at P.S. Raisinghnagar, on the basis of which, after investigation challan was submitted before the Magistrate. He did not commit the case to the learned Sessions Judge though the present case was committed. However, after trial acquittal was recorded in that case. He also submitted that the accused persons suffered injuries and Dr. Bansal (PW 10) had examined their injuries. He submitted that when Dr. Bansal was examined before the trial court, the file of the Magistrate's Court relating to cross case could not be made available and he could not be cross-examined. Therefore, the application under Section 311 Cr.PC. should be allowed and Dr. Bansal should be called for further cross-examination.

3. On the other hand. Shri Garg submitted that this is a clear case of rs filling up of lacuna and this Court in many reported and unreported cases held that such lacuna should not be filled.

4. I have considered the matter. it is a fact that cross F.I.R. was lodged and on the basis of which investigation was made and challan was submitted. The injury reports of the accused persons were available on the file of cross F.I.R. but it could not be summoned when Dr. Bansal was examined before the trial Court. In 1998(1) RCD 31 (Raj) Ramras Yadav v. State of Rajasthan Anr. the application for re-summoning the witness was allowed as the counsel had forgot to cross examine the witnesses on certain points and it was likely to cause prejudice to the accused. In such circumstance, when file could not be summoned due to oversight, there will be no filling up of the lacuna. The prosecution has ultimately to explain as to why and how the accused persons suffered the injuries. It is rather an explanation, therefore, prosecution should not oppose this application.

5. In this view of the matter, this revision petition is allowed. The order of the learned Addl. Sessions Judge, Raisinghnagar dated 13.9.99 is set-aside. The application of the accused petitioner under Section 311 Cr.P.C. stands allowed.Petition allowed.

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