NATHIBAI Vs. BHURA

JUDGEMENT

(1.) The present revision petition is against the order dated 17.7.1989, passed by the Sessions Judge, Panna, in S.T. No. 70/89 acquitting the non-appellant No.1 because of the non attendance of the remaining prosecution witnesses.

(2.) The brief facts are that the police of police- station Devendranagar filed a challan against the non-applicant No.1 on the basis of complaint lodged by the applicant under Section 376, Indian Penal Code. The trial programme was submitted by the prosecution. The trial was fixed for prosecution evidence on 7.3.1989 to 9.3 .1989. On 7.3.1989 since the Presiding Officer was on leave, therefore, the trial was adjourned to 2.5.1989 to 4.5.1989. On 2.5.1989 because of non-issuance of summons the trial was again adjourned and fixed for 22.6.1989, 23.6.1989 and 24.6.1988. On 22.6.1989 prosecutrix Nathibai was examined. On 23.6.1989 the prosecution witnesses. Ku. AdlI, Sahodrabai, Sheopratap Singh Constable, Harilal and one Gopal Prasad were examined and cross-examined. On 24.6.1989, Dr. D.C. Mahadik and Babulal Patwari were examined and cross-examined. One witness Ramkhilavan was given up by the prosecution. Prosecution filed on application for examining remaining witnesses. The application of the Public Prosecutor for issuing summons to remaining prosecution witnesses, Sakhendra, Ramlakhan, Raghuraj Singh, Ramprem Constable, R.S. Paribar, Sub-Inspector and Dr. (Smt.Kamlesh was allowed. It was ordered by the court that the summons be issued to these witnesses. The case was then fixed for examination of these witnesses on 17.7.1989. On 17 .7.1989, no witness was present because summonses were not issued by the Court, but the Court closed the prosecution case on the ground that summonses were not taken by the prosecution and the prosecution witnesses were not served. The prosecution case was closed and was fixed for orders on 21.7.1989. The applicant-prosecutrix immediately came up before this court on 20th July, 1989. The revision petition was admitted by this court and further proceedings before the lower court were stayed. This stay order was confirmed subsequently on 16.10.1989.

(3.) The submission of the learned counsel for the applicant is that it is the duty of the Court to have issued the summonses. In case, the witnesses do not attend, the coercive process ought to have been issued, the Court ought not have closed the prosecution case when important prosecution witnesses remained to be examined.