MUKUNDA DEV BARAL Vs. SANJIB BARAL

JUDGEMENT

(1.) The informant assails correctness of the order passed by the learned Assistant Sessions Judge, Cuttack, refusing to recall a doctor who was examined as P.W. 5 in the case.

(2.) The case of the informant in support of the application is that the doctor had examined injured - P.W. 6, and the X-ray plates, bed-head tickets and the discharge certificate were not seized by the Investigating Officer (P.W.8) and therefore, those were not brought on record. Prayer was made by the prosecution in terms of S. 311 of the Code of Criminal Procedure, 1973 (in short 'the Code) to recall the doctor to bring on record those documents and materials. Accused persons resisted the prayer on the ground that the same was belated and was intended to fill in lacuna in the prosecution case. The learned Assistant Sessions Judge refused the prayer primarily on the grounds that; (a) the clinic of the doctor in question was a private one; and possibilty of fabrication of records and papers at his level cannot be ruled out; (b) the doctor and the Investigating Officer were examined long back, and the time gap was such that steps could have been easily taken by the prosecution to bring the materials on record earlier; and (c)the Investigating Officer left out certain lacuna in investigation which will be filled in if P.W. 5 is recalled and the materials are permitted to be brought on record.

(3.) The petitioner characterises the order to be result of non-application of mind and non-consideration of relevant aspects. The accused-opposite party Nos. 1 to 3, however, question the maintainability of the petition at the instance of the informant and also support the order on the ground that the same does not suffer from infirmity to warrant any interference.