DEEPAK RAIKWAR Vs. STATE OF M P

JUDGEMENT

(1.) The applicants/accused have preferred this revision under Section 397/401 of Cr.P.C. being aggrieved by the order dated 3.11.2011, passed by Vith Additional Sessions Judge Bhopal, in Sessions Trial No. 16/11, whereby their application filed under Section 311 of Cr.P.C. to recall the examined prosecution witness Dr. M. Lalwani (PW-17) for further cross-examination, has been dismissed. Applicants' counsel after taking me through depositions of Dr. M. Lalwani (PW = 17) and Imtiaz Ali (PW-21), which was recorded on 2.10.2011, subsequent to examination of the aforesaid Dr. M. Lalwani along with the impugned order and the applicants' application filed under Section 311 of Cr.P.C., said that as per settled proposition of law, the accused like applicants should be extended sufficient opportunity to defend the case and in such premises, if the Doctor of criminal case, who carried out the post-mortem of the deceased, was examined at earlier stage and thereafter, some other witness relating to the material facts is examined then, the accused like applicants, have a right to recall the earlier examined prosecution witnesses to carry out his further cross-examination in the light of material factual circumstances came in the deposition of subsequent examined witness/witnesses. In continuation, he said that as per para 4 of the deposition of Imtaiz Ali (PW-21), the deceased Saad after stepping down in front of the hospital from the auto rickshaw, went inside the hospital by walking while, the aforesaid earlier examined expert witness Dr. M. Lalwani (PW-17) in his post-mortem report and paragraph 3 & 10 of his deposition has categorically stated that the deceased sustained multiple fractures in his head and his brain material had also come out In such circumstances, subsequent to recording the depositions of Imtiaz Ali (PW-21), the further cross-examination of the Doctor on behalf of the applicants is necessary. Otherwise, the right of applicants to defend the case may be prejudiced at large and prayed to allow his application and extending the opportunity to cross-examine the Doctor M. Lalwani (PW-17) by recalling him in the trial Court by allowing this revision.

(2.) On the other hand, by justifying the impugned order, the learned Panel Lawyer Shri Chourasia said that in the available factual matrix of the case the trial Court has not committed any error in dismissing the impugned application of the applicants. As such Dr. M. Lalwani (PW-17) has already been cross-examined at length and prayed for dismissal of this revision.

(3.) Having heard the counsel, keeping in view their arguments, I have carefully gone through the copy of application filed by the applicants under Section 311 of Cr.P.C., the aforesaid depositions of the witnesses and the impugned order.