VALU LAKHMAN SOHLA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of present revision application filed u/s 397 r/w section 401 of the Code of Criminal Procedure, 1973 (for short "the Code"), the applicants have challenged order dated 21.9.2016 passed by the learned 6th Additional Sessions Judge, Rajkot, whereby the learned Judge allowed the application Exh.208 preferred by the prosecution under the provisions of section 311 of the Code.

(2.) It appears that after conclusion of trial of Sessions Case No.11/2013 for the offences punishable u/s 302, 143, 147, 148, 149, 323, 324, 325, 427 of the IPC and u/s 135 of the B.P. Act, the applicant ­ original complainant through prosecution made an application at Exh.208 seeking recall of the witnesses i.e. PW 9 ­ Dr. Vinod Sukhalal Chavda as well as PW 25 Mr. Dilip Jilubha Rathod for the purpose of their further examination-in-chief on the ground that in the report Mark 44/22 for addition of the offence punishable u/s 302 of the IPC, it has been mentioned therein that the deceased was brought to the Civil Hospital for his treatment. Vide affidavit Exh.206, it is stated on oath that the deceased was brought to the Civil Hospital in dead condition and therefore, no dying declaration has been recorded. Similarly, the prosecution side also made a reference of deposition of PW 9 and more particularly, cross-examination recorded in para 15, inasmuch as he admitted that he did not bring the treatment papers of deceased Mr. Govindbhai Lakhubhai and for want of papers, he could not state whether he treated Mr. Govindbhai or not.

(3.) At the time of hearing of the present revision application, learned APP Mr. Rakesh Patel made a statement at bar that deceased Mr. Govindbhai Lakhubhai was treated by PW 9 and such treatment papers are available with the Civil Hospital, but PW 9 did not bring the case papers of treatment given to deceased Mr. Govindbhai Lakhubhai. No question pertaining to said aspect was brought on record in the examination-in-chief of PW 9. It is also a matter of fact that defence side agreed to admit and accept report praying addition of offence u/s 302 of the IPC after conclusion of trial as per application Exh.203.