Gopal Singh and Another vs State of Punjab

Sabina, J.—This petition has been filed by the petitioners u/s 401 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) challenging order dated 9.7.2011 passed by the Appellate Court, whereby the case was remitted back to the trial Court for a fresh decision. Learned counsel for the petitioners has submitted that the Appellate Court had erred in remanding the trial back to the trial Court as the examination of the doctor was not essential for the just decision of the case. In fact, the trial Court had found that the petitioners were not present at the spot.

Learned State counsel and learned counsel for respondent No. 2, on the other hand, have opposed the petition.

In the present case, petitioners had faced trial in FIR No. 130 dated 18.3.2005 under Sections 323/341/506/34 of the Indian Penal Code, 1860 with regard to the injuries inflicted by them on the person of Lakhwinder Singh, respondent No. 2. A perusal of the judgment of the trial Court (Annexure P-1) reveals that the trial Court held that the petitioners were not present at the spot relying on the statement of the Investigating officer. The complainant, on the other hand, had fully supported the prosecution case. The trial Court was influenced with the fact that there was no medical evidence on record to establish the injuries inflicted by the petitioners on the person of the complainant. In this regard, learned Appellate Court found that the relevant doctor could not be summoned due to inadvertence. A perusal of the judgment of the Appellate Court (Annexure P-2) reveals that due to inadvertence the name of the doctor had been mentioned as Dr. Hari Om Aggarwal in the list of witnesses. When the summons were issued to the said doctor, he returned the same by mentioning that he had never worked at Civil Dispensary, Model Town, Patiala in the year 2005. The prosecution moved an application u/s 311 Cr.P.C. for summoning Dr. Sumit Bansal as additional accused but the same was dismissed by the trial Court on the ground that the name of the said doctor was not mentioned in the list of witnesses. It appears that the trial Court failed to appreciate that the name of Doctor Sumit Bansal had not been mentioned in the list of witnesses due to inadvertence as in his place name of Dr. Hari Om Aggarwal had been mentioned. In case the said witness is allowed to be examined during trial, the lis between the parties will be disposed of in a more effective as well as just and fair manner. In this view of the matter, the Appellate Court rightly set aside the judgment of acquittal passed by the trial Court and directed it to decide the matter afresh after recording the statement of Doctor Sumit Bansal. Petitioners will not suffer any prejudice as they will get an opportunity to cross-examine Dr. Sumit Bansal. The Appellate Court had already directed that only two effective opportunities will be granted to the prosecution to examine Dr. Sumit Bansal. In these circumstances, no ground for interference is made out. Accordingly, this petition is dismissed.