K.S. LODHA, J.—This revision has been filed by the complainants Umed Singh, Mohan Singh and Madho Singh against the order of the learned Addl. Sessions Judge No. 2, Jodhpur, rejecting the application of the Public Prosecutor for additional evidence u/s 311 Cr.P C.

2. The accused-non petitioners are facing trial for offences u/ss 307, 323 I.P.C. and u/s 25 of the Arms Act. The case of the prosecution briefly stated is that the accused persons on account of a quarrel in respect of a bada attacked the complainant party with swords. Devi Singh is alleged to have given a sword blow on the hand of Madho Singh and the other accused persons are said to have given sword blow to other complainants. The injured Madho Singh was admitted to the Millitary Hospital and the other injured persons were taken to the Mahatma Gandhi Hospital, Jodhpur. The evidence of the prosecution had come to an end and the accused persons have also already been examined and their defence evidence was also over. At that stage, the learned Public Prosecutor moved an application u/s 311 Cr. P. C. on 16.8.83 requesting the court to call the Doctor of the Military Hospital who admitted Mohan Singh and treated him there along with the bed head ticket and the injury report in evidence. A prayer was also made to call some other Doctor of the Mahatma Gandhi Hospital with the bed head ticket of another injured Mohan Singh. It was mentioned in the application that it appeared that the police did not collect this evidence during the investigations but for the sake of justice and for the proper decision of the matter, this evidence was most relevant and the court should call the same. After hearing the learned Public Prosecutor and the learned counsel for the accused persons, the learned Addl. Sessions Judge rejected the application. He was of the opinion that prosecution had failed to establish that thus the evidence was necessary for a just decision of the case. He was also of the opinion that the application was bilated and the necessary particulars about the names of the Doctors etc. who were sought to be summoned had not been mentioned. Aggieved of this order, the complainants have filed this revision.

3. I have heard the learned counsel for the parties and have gone through the record.

4. It is urged by the learned counsel for the complainants that the evidence sought to be produced now in respect of the injuries of Madho Singh is most relevant and important for the just decision of the matter and it was incumbent upon the learned Addl. Sessions Judge to have called this evidence in exercise of his powers u/s 311 of the Code of Criminal Procedure He placed reliance upon Jamatraj V. State of Maharashtra (1). On the other hand, the learned counsel for the accused contended that the learned Addl. Sessions Judge was perfectly justified in rejecting on the application on the grounds stated by him. He urged that the prosecution should not be allowed to make up the lacunas left by it by resort to s. 311 Cr.P.C. It was also further contended by him that it is the complainants who have come up in revision against the order of the learned Addl. Sessions Judge rejecting the application u/s 311 Cr.P.C. and not the Public Prosecutor. In these circumstances, according to the learned counsel, this application for revision at the instance of the complainant should not be entertained.

5. The learned counsel for the accused persons strongly relied upon a decision of this Court in State v. B.B. Saxena (2).

6. I have given my careful consideration to the rival contentions. So far as the objection of the learned counsel for the accused-non-petitioners that this revision at the instance of the complainants should not be entertained, I am of the opinion that looking to the peculiar circumstances of this case and the importance of the evidence sought to be produced, I need not refuse to entertain the revision at the instance of the complainants even though the prosecution agency has not come forw

Click Here to Read the rest of this document