DARYAO SINGH Vs. STATE & ORS

JUDGEMENT

(1.) Crl.M.A. 14802/2016

(2.) After the petitioner led the pre-summoning, all the accused were summoned and the Trial Court proceeded with the complainant as a warrant trial case and on 8th April, 2011 it was converted into a summons trial case as the accused were summoned for offences punishable under Section 447/323/34 IPC only. After closure of the evidence of the complainant, all surviving accused persons were examined under Section 313 Cr.P.C. and they led their defence evidence. At the stage of final arguments, the petitioner filed an application on 4th July, 2016 seeking liberty to summon PW-3 Shankar Lal, Record Clerk of Irwin Hospital to prove the medical report of his wife. The Court noted that this witness has already been examined in the pre-summoning evidence and he has proved the medical report as Ex.PW-3/1.

(3.) The learned Trial Court vide order dated 28th July, 2016 rejected the prayer of the petitioner on the ground that after a trial which has spanned for 36 years the complainant's evidence cannot be re-opened. It also noted that as many as 12 accused had since passed away during the pendency of the trial, one Santosh was deleted from the array of parties vide order dated 26th February, 1996 and merely because a new counsel was engaged liberty cannot be granted to the complainant to re-examine the witness. The learned Trial Court noted that accused persons were summoned only for offences punishable under Section 447/323 IPC in the year 1980 which order was not challenged and hence the same has attained finality. Now the petitioner by further adducing evidence with regard to miscarriage cannot re-start the trial again. The learned Court also noted that at the stage of final arguments petitioner had taken an objection that the present case is a Sessions trial case as his wife suffered a miscarriage and the objection of the petitioner was dismissed vide order dated 28th June, 2016. The order dated 28th June, 2016 was assailed in a revision petition before the learned ASJ which was also dismissed on 13th July, 2016. Thus the application under Section 311 Cr.P.C. was dismissed by the learned Metropolitan Magistrate on 29th August, 2016. Hence the present petition.