1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13.06.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD)No.316 of 2011 and M.P(MD)No.1 of 2011 1.Pathianathan 2.Cabriel ... Petitioners/Accused Vs. The State represented by The Sub Inspector of Police, Kottaipattinam Police Station. ... Respondent/Respondent Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure to set aside the order dated 03.02.2011 in Crl.M.P.No.734 of 2011 passed by the learned Judicial Magistrate, Aranthangi in C.C.No.282 of 2006. For Petitioners : Mr.Porkodi Karnan For Respondent : Mr.P.Kandasamy, Govt. Advocate (Crl.Side) ORDER The revision petitioners are arrayed as accused in C.C.No.282 of 2006 on the file of the Court of Judicial Magistrate, Aranthangi, Pudukkottai District and they are facing the prosecution for the alleged offences under Sections 323, 341, 324 and 326 read with Section 34 I.P.C. 2. The case of the prosecution is that on account of the previous enmity, both the accused waylaid the defacto complainant/P.W.1 on 29.05.2006 at 04.00 p.m., and A.1 hit him with the stick on his back and subsequently, beat on his legs and consequently, he sustained simple injuries. A.2 with the use of a stick, also inflicted injuries on the victim/P.W.1 and thereby, he caused simple injuries and grievous injury on the right forehand. 3. The defacto complainant/injured who was examined as P.W.1, has deposed that he has sustained grievous injury on his right hand. P.W.9 who treated P.W.1, has also deposed that on examination, it was found that P.W.1 sustained simple injuries as well as grievous injury on his right hand. 4. P.W.9 who gave his opinion based on the X-ray, in his statement recorded by the Investigating Officer, stated that P.W.1 https://hcservices.ecourts.gov.in/hcservices/ 2 did not sustain any injury on his left hand and he suffered a fracture on the right forearm and also sent a report in this regard. However, while he was examined as P.W.9, he deposed that P.W.1 sustained injury on the right hand. 5. The respondent/prosecution has filed a petition in Cr.M.P.No.734 of 2011 under Section 311 Cr.P.C, stating that P.W.9 was examined on 22.11.2010 and there is vagueness in his evidence with that of the evidence of P.W.1/injured and in order to clear the vagueness, he has to be recalled and further examination of P.W.9 is necessary. 6. The said petition was opposed by the revision petitioners/accused by filing the counter statement that in order to get over the lacuna in the evidence of P.W.9, the petition for recalling the said witness is filed and the same is impermissible in law. 7. The lower Court on taking into consideration the petition and the counter, has allowed the petition stating that no prejudice would be caused to the revision petitioners/accused. 8. Challenging the vires of the same, the revision petitioners/accused preferred this revision. 9. The learned Counsel for the revision petitioners would submit that admittedly, there is a discrepancy among the testimonies of P.W.1, P.W.8 and P.W.9 and according to P.W.1 and P.W.8, the victim suffered an injury on the right forearm and according to P.W.9, the victim suffered injury on the left hand and in order to get over the said lacuna, the prosecution came forward to file the present petition without specifically stating any reasons and the trial Court in a cryptic order, has allowed the petition and therefore, prayed for interference. 10. Per contra, the learned Government Advocate (Criminal Side) would submit that the revision is not maintainable for the reason that the rights and liabilities of the parties have not been finally decided and that in order to clear the vagueness only, the petition is filed and it was ordered by the lower Court after full and due application of mind. 11. This Court has carefully considered the submissions made by the learned Counsel on either side and perused the materials available on record in the form of typed set of documents. 12. A perusal of the testimonies of P.W.1 and P.W.8 would disclose that the victim/P.W.1 suffered injury on the right forearm, whereas P.W.9 in his oral testimony, deposed that the victim suffered injury on the left hand. The testimony of P.W.9 is in contra to the statement recorded under Section 161 of the Code of Criminal https://hcservices.ecourts.gov.in/hcservices/ 3 Procedure during investigation. It is clear that in order to get over the same, the prosecution came forward to file the petition under Section 311 of the Code of Criminal Procedure though the said reason has not been specifically stated in the petition. 13. It is the settled position of law that in order to get over the lacuna, the petition under Section 311 of the Code of Criminal Procedure cannot be filed and this Court, on perusal of the impugned order also finds that no reasons have been assigned as to the recall of P.W.9. For the said reasons, the impugned order is liable to be set aside. 14. In the result, the Criminal Revision Case is allowed and the impugned order is set aside. Consequently, the connected Miscellaneous Petition is closed. However, it is made clear that this Court has not touched upon the merits of the case projected by the prosecution. The trial Court need not be influenced by any of the observations made by this Court and it has to adjudicate and decide the case based on the quality of the evidence made available before it. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To: 1.The Judicial Magistrate, Aranthangi. 2.The Sub Inspector of Police, Kottaipattinam Police Station. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.Porkodi Karnan, Advocate, Sr.No.18158 Crl.R.C.(MD)No.316 of 2011 and M.P(MD)No.1 of 2011 13.06.2011 rsb SMA/20.6.2011/5C/3P https://hcservices.ecourts.gov.in/hcservices/