RAJ KARAN Vs. JEEWAN KHAN

JUDGEMENT

(1.) THIS revision petition is directed against the order of the learned Munsif and Judicial Magistrate Sardarshahar dated 21 -1988 whereby the learned Magistrate allowed the application of the complainant to examine Shri Lunaram Patwari and Shri Prtapsingh Purwa, Advocate as court -witnesses, after the defence closed its evidence and specially when these witnesses were cited as prosecution witnesses but they were not examined by the complainant.

(2.) THE complainant moved his application on 17 -2 -1987 about the examination of these two witnesses as court -witnesses pleading, inter alia, that the defence witnesses have denied the occurrence of fire. It is not a formal denial but they have stated that no such fire took place and, therefore, in order to rebut their version, these witnesses should be examined as court witnesses. The accused -persons filed the reply on 21 -11 -1987 pleading inter alia, that these witnesses, which were cited as prosecution witnesses by the complainant, and were not examined by the prosecution, now cannot be examined to fill up the gap left by the prosecution. The learned lower court after considering the rival submissions made at the bar came to the conclusion that evidence in this case is contradictory and, therefore, it has deemed it proper to examine these two witnesses as court -witnesses.

(3.) IT was further argued by Mr. A K. Rajvanshi, the learned Counsel appearing for the petitioners that these two witnesses were cited by the complainant as his own witnesses but he failed to examine them and now after the defence has closed its evidence, the prosecution cannot be allowed to examine these witnesses at court -witnesses in order to fill up the gap left by it. In this respect, reliance has been placed on Piara Singh v. State of Punjab 1978 Cr. LJ 771, where in it has been observed. It would not be proper exercise of the discretion under the section, to allow evidence explaining the delay in lodging the report to be recorded after accused had closed their defence especially when one of the witnesses who was to depose about this matter was cited in the calender of witnesses and was later given up by the Public Prosecutor. In Balwant Singh v. State of Rajasthan 1986 Cr. LJ 1374, an application was made to examine the witnesses after the closure of the defence evidence to prove that the weapon used by the accused party was a sharp weapon but it was used from its blunt side. The Court held that that could have been proved while the prosecution led its own evidence because the Doctor has categorically stated that the injuries received by the injured were from a blunt weapon and so, in such a case, powers under Section 311 Or. PC cannot be allowed to be used after the defence has closed its evidence.