S.B. CRIMINAL MISC. PETITION NO. 1589/2008 Date : 16.12.2008 HON'BLE MR. C.M. TOTLA, J. Mr. J.S. Choudhary for the petitioner. Mr. V.R. Mehta, P.P. Mr. G.R. Punia for the respondent. = = = = Petitioner accused facing trial for the offences of Section 302/34, 323, 341 IPC in Sessions case no. 14/08 before the court of Additional Sessions Judge, Parbatsar preferring this petition requests that setting aside learend Sessions Judge's order dated 06.12.08, their application under Section 311 Cr.p.C. For recalling and producing defence witnesses may be allowed. Brief facts as submitted are that petitioners are facing trial for the above offences – prosecution evidence is complete and after stage of defence evidence, posted for final arguments - at the stage of final arguments of December 6th, 2008, on behalf of petitinoer accused, an application under Section 311 Cr.P.C submitted for (i) recalling of prosecution witnesses Dr. Om Prkash PW/2 and ASI Jagdish Prasad PW/16 (ii) for summong of Radiologist in defence evidence - as per application, accused petitioner was injured on whose information FIR No. 108/08 registered at P.s. Chidawa – due to error in course of trial faced by petitioners, their injury reports not got proved. Learned counsel for the petitioner argued that doctor PW/12 has also examined petitioners whose injury reports are very much on record – in course of investigation of FIR lodged by petitioner as 1080/08 ASI PW/16 inspected the site memo which is also with other file which also due to error not got proved by PW/16 – petitioners sustained grievous injuries so evidence of Radiologist doctor is essential. Argued that all these witnesses are posted at the same place – documents existed right from the beginning and were in knowledge of everyone including the prosecution and it is not filling of any lacunae or new evidence. Argued that petitioners facing trial for charge of Section 302 IPC, themselves received grievous injuries so, documents are essential to be proved for defence and even if any oversight or even negligence, still in the interest of justice, application should be allowed. Citing relevant portions of statements of witnesses, learned counsel for the petitioner relied on (i) 2000 Cr.L.r. (Raj.) 134 Hanuman Ram & Anr. Vs. State of Rajasthan (ii)1984 Cr.L.R. (Raj.) 580 Umed Singh & ors. Vs. Devi Singh & ors. (iii) 2006(1) Cr.L.R. (Raj.) 219 Bhuri Singh Vs. State of Raj. (iv) (2007) 1 SCC (cri) 54 Subhash Maruti Avasare Vs. State of Maharashtra. Learned counsel for the complainant respondent argued that (i) almost all the mateiral prosecution witnesses cross-examined on the point of injuries to the petitioner (ii) concerned doctor PW/2 was also examined at length (iii) ASI PW/16 also cross-examined for injuries and investigation (iv) in course of defence though copies of injury reports submitted but despite two opportunities, no defence evidence led (v) application is only to delay the matter. Learned counsel for the respondent complainant argued that provisions of Section 311 Cr.P.C cannot be used for filling up lacunae of prosecution or of defence and in any case, prosecution witnesses cannot be called as defence witness. Lastly argued that incorporating two separate issues of recalling witnesses and defence evidence in one application is not as per procedure. Submitting that allowing petitioners' application may prejudice complainant and delay the matter. Reliance placed on decisions :- (i) 2006(1) WLC (SC) (Cri) 539 State of M.P. Vs. Badri Yadav (ii)2007(1) Cr.L.R. (Raj. 266 Bhagirath Vs. M/s Mahaveer Prasad Surendra Mohan (iii)WLC 2007(4) (Raj.) 561 Ajay Nahta Vs. State of Raj. & ors. Learned Public Prosecutor submitted that injury report even if existed from beginning, if not used in cross-examination of PW/12 then it is the look out of accused and in very exceptional cases, provisions of Section 311 Cr.P.C. are to be invoked. Considered rival arguments. The petitioners are facing trial for the offence of Section 302 IPC and other. The concerned Medical Officer Ashok PW/12 was examined on 18.07.06. Statement of ASI PW/14 were recorded on 20.09.08 and in cross-examination, he has admitted that he got petitioners medically examined on the very same day in morning. From the order of learned Sessions Judge, it is apparent that copies of injury reports Ex.D/9 and Ex.D/10 were produced on 25.10.08 in course of examination of accused under Section 313 Cr.P.C. and no defence evidence led on 06.11.08 and 11.11.08. Thus, in defence evidence, opportunity was given in span of about 15 days. The injury and X-ray reports are asserted to have existed right fromt he begining. The provisions of Section 311 Cr.P.C. are very clear and are to be exercised considering all the relvant facts and circumstances, if essential to the just decision of the case. Ofcourse, care is to be taken that invoking provisions do not casue un-necessary delay or beginning of entire new evidence. For the instant case, copies of injury reports of petitioners were tendered in coruse of examination of petitioners and not much time has elapsed since then. The witnesses sought to be recalled are two, from amongst the prosecution witnesses examined for whom provisions of Section 311 Cr.P.C are applicable. For Radiologist, who is not amongst the prosecution witnesses, even if provisions of Section 311 Cr.P.C. are not applicable, then provisions of Section 233 Cr.P.C are there incorporating both the prayers in one and same applications can hardly be of any significance. Considering above, giving appropriate directions for avoiding un-necessary delay, the application for recalling PW/12 Dr. Ashok and for Radiologist doctor in defence evidence is allowed. The prayer for recalling ASI PW/16 is to be declined. Accordingly, the petition is disposed of in above terms. Setting aside the order dated 06.12.2008, it is directed that PW/12 Dr. Ashok Prakash be recalled for examination/cross-examination only for injury reports of accused petitioners (for other matters, if any, only as per permission of trial court). Doctor radiologist to be named on the very first hearing is allowed to be produced as defence witness. Further it is directed that trial court shall be at liberty to give appropriate directions including summons of witnesses dasti or asking petitioners themselves to produce the witnesses. This order is without prejudice to other provisions of the Code exercisable by the trial court. (C.M. TOTLA), J.