1 975.11 CWP IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 975 OF 2011 Sarjerao S/o Nilaji Bhole & othrs PETITONERS VERSUS The State of Maharashtara RESPONDENT ..... Shri J.S. Gavane, Advocate for the petitioners Shri N.H. Borade, APP for the respondent / State ..... CORAM : U.D. SALVI, J. DATED : 16 th November, 2011. PER COURT : 1. Heard. Perused application and annextures thereto. Exercise of discretion by the learned appellate Court to call for additional evidence in Criminal Appeal No. 59/2010, preferred against the judgment and order of acquittal passed by the learned Judicial Magistrate, First Class, 4th Court, Georai, District Beed in R.C.C. No. 77/2008, is questioned in the present petition. 2. The petitioner/ accused were acquitted of the offences punishable under Sections 452, 323, 325, 504 and 506 r.w. Section 2 975.11 CWP 34 of the Indian Penal Code, 1860 in the said case. Perusal of the judgment passed by the learned Judicial Magistrate, First Class 4th Court, Georai, reveals that there was eye witness account of the incident involving violence, which was disbelieved for certain reasons one of them being the failure of the prosecution to adduce the evidence regarding injury sustained by the eye witness, particularly grievous hurt sustained by the complainant in the said case. 3. Learned Advocate for the petitioner, submits that the prosecution did avail of the opportunity to lead the medical evidence in as munch as he had made an application for issuance of summons vide application Exh. 51 which was rejected by the learned trial Court and the evidence was closed. The said order of rejection was not challenged by the prosecution and ultimately, the prosecution has preferred application before the learned appellate Court and obtained the orders on the said application under Section 391 of Criminal Procedure Code, 1973 in its favour. It is for this reason he submitted that the learned appellate Court ought not to have exercised his discretion in favour of the prosecution. 3 975.11 CWP 4. Perusal of the copy of application (Exh. 51) in R.C.C. No. 77 of 2008 annexed to the petition at Exhibit E reveals that the prosecution had made an application at the stage of recording of evidence/ hearing for an adjournment and issuance of summons to the Medical Officer named in the charge-sheet, on the ground that the summons issued had remained unserved. The learned trial Court passed the following order on 25-03-2010, which reads as under : “ Already summons were issued to witnesses on several occasions. No satisfactory report was received. Hence, prosecution evidence has been already closed today. Hence this application stands rejected.” 5. Perusal of the impugned order reveals the mind of the learned appellate Court. Learned appellate Court heard the rival parties and did consider the record and submissions made by the parties at length. Learned Appellate Court thereupon made observations that only reason mentioned to reject the application made by the prosecution was the issuance of summons on several occasions without receiving any fruitful report; and it was the result of the Medical Officer having been transferred from place to place 4 975.11 CWP and his examination was absolutely necessary. Considering serious nature of allegations made against the accused. 6. Thus, it can be seen from the facts and circumstances of the case, that the prosecution in reality had not availed of fair opportunity to lay before the trial Court the complete evidence in support of its case. No perversity or illegality is therefore, seen in the impugned order. Criminal Writ Petition No. 975 of 2011, is therefore, dismissed in limine. ( U.D. SALVI, J. ) SDM* November-11