SHISH RAM Vs. STATE OF RAJASTHAN AND OTHERS

JUDGEMENT

(1.) - This misc. petition has been preferred u/S. 482 Crimial P.C. against the impugned order dated 23.11.2015 by which the evidence of prosecution was closed.

(2.) Learned counsel for the petitioner submits that trial against the respondent-accused nos. 2 & 3 is pending u/Ss. 363, 366A, 376D and Sec. 3(1) (XII) SC/ST (Prevention of Atrocities) Act and Sec. 5 & 6 Protection of Children from Sexual Offences Act (POCSO). He submits that date of birth of the prosecutrix as per school record is 21.10.1998 tor which Headmaster of concerned school issued certificate. Inadvertently, investigating officer failed to add the name of Headmaster in the list of witnesses, therefore, an application was filed for adding his name in the list of prosecution witnesses on 5.11.2015 for which counsel for accused pleaded no objection, therefore, vide order dated 5.11.2015 his name was added at serial no. 23 in the list of prosecution witnesses and it was ordered that the said witnesses be produced by the prosecution at its own. The next date of hearing for prosecution evidence was fixed for 23.11.2015. On the said date, since, witness no. 23 couldn’t appear before the court, therefore, prosecution evidence was closed. He submits that since prosecutrix is minor and the offence is under POCSO Act also, therefore, witness no. 23 headmaster of the concerned school is important witness to prove the age of prosecutrix and without affording reasonable time to produce the same, learned trial court closed the prosecution evidence' which may affect the prosecution case, therefore, this misc. petition may be , allowed and prosecution may be given an opportunity to produce the same. He further submits that after submitting the name list of witnesses it is duty to court to summon the witness no. 23 instead of producing the same by the prosecution.

(3.) Learned counsel relied upon the judgment in the case of Arjun Ram Vs. State of Rajasthan reported in RLW 2007 (3) Rajasthan 2081 wherein co-ordinate Bench of this court has observed that from the material available on record it is clear that the petitioner injured suffered injury on the right eye by gun-shot having suffered numerous pellet injuries and he was referred to the M.D.M. Hospital and S.N. Medical College, Jodhpur where he was examined by Dr. C.P. Swarnkar and report was prepared by him, thereafter he was referred to S.M.S. Medical College and Hospital, Jaipur where he was examined by Professor Dr. T.C. Jain who also made a report and the reports prepared by these doctors are on record and therefore, in order to prove those reports, these two persons are material witnesses and are essential to the just decision of the case. In the circumstances, therefore, the trial Court fell in error in declining to summon these two witnesses by the order impugned. The order, impugned, therefore, cannot sustain.