The court ruled that prior exclusion of witnesses does not preclude their summoning later when necessary for a just trial, emphasizing the importance of witness testimony under Section 311 Cr.P.C.

JUDGMENT

Mr. Sanjiv Berry, J.

The instant petition under Section 482 Cr.P.C. has been preferred by the petitioner for setting aside of the impugned order dated 09.01.2018 (Annexure P-7) passed by learned Additional Sessions Judge, Jhajjar in case FIR No. 292 dated 13.12.2014 (Annexure P-1) registered under Section 148 , 149, 447, 307, 323 IPC and 27/30 of the ARMS ACT , Police Station Beri District, Jhajjar whereby applications of the petitioner under Section 311 Cr.P.C to produce additional prosecution witnesses has been dismissed.

2. It is, inter alia, contended by learned counsel for the petitioner that the petitioner has lodged FIR against respondent No.2 to 12, who had thrashed the whole family of the petitioner in a land dispute and fired shots with intention to kill the petitioner and his family members. Challan was filed, and list of witnesses was given, in which Ompati wife of Bhagat Singh, Bijender son of Daya Kishan were mentioned as injured eye witness, but the earlier counsel for the petitioner had given a hand written application to give up the prosecution witnesses. This fact came to the notice when the petitioner changed the counsel and he informed that injured eye witness and scribe of the complaint are very relevant witnesses, therefore, the petitioner moved an application under Section 311 Cr.P.C for producing the additional witnesses, but the same was dismissed. There is land dispute between the parties for which CWP No. 14921 of 2017 is pending before this Court. Petitioner had given an application for examining the Sadar Kanungo of Deputy Commissioner's Office, on 18.03.2016 which was also dismissed. He further contends that all the accused are on bail and no pre-judice would be caused to any of the party and prays for setting aside the orders 09.01.2018 (Annexure P-7) passed by learned Additional Sessions Judge, Jhajjar, and hence the present petition.

3. Learned counsel for the State contends that since the examination of the witnesses who happens to be the injured eye witnesses is essential for just decision of the case and as such the learned additional Sessions Judge committed error in dismissing the application. He has referred to the judgment cited as Rajaram Prasad Yadav v. State of Bihar and another, 2013 (3) RCR (Criminal) 726.

4. Learned counsel appearing on behalf of the private respondents has submitted that since the complainant while moving application had given up the aforesaid witnesses as unnecessary, therefore he cannot be allowed to fill in lacuna by moving application to examine those witnesses who had already been given up being unnecessary and prayed for dismissal of the present petition.

5. I have considered the submissions made by learned counsel for the parties and have also gone through the record with their assistance.

6. After considering the rival contentions and considering the facts and circumstances of the present case, it is observed that the present FIR was registered on the complaint of the petitioner for offences under Section 30 7, 148, 149, 447, 323 IPC read with Section 27 /30 of the ARMS ACT at Police Station Beri, District Jhajjar, after conclusion of investigation Challan (Annexure P-1) was presented in Court along with the list of witnesses (Annexure P-2). A perusal of list of witnesses reveals that Ompati wife of Bhagat Singh and Bijender son of Daya Kishan has been cited as witnesses by the prosecution. Subsequently vide application (Annexure P-3) colly dated 14.02.2017 and 07