- (1.) This Criminal revision petition under Section 397 Cr. P.C. has been filed by the accused petitioner on 20/4/2004 against the order dtd. 5/4/2004 passed by the learned Additional Sessions Judge No. 3, Jodhpur in Criminal Appeal No. 35/2003 by which the learned additional Sessions Judge rejected the application filed by the petitioner under Section 391 Cr. P.C.
(2.) It arises in the following circumstances (i) That on 23-1-1998, a FIR was lodged by Kailash Dadhich against the accused petitioner with the Police Station Udai Mandir, odhpur for offences under Sections 279 and 304A I.P.C. alleging inter alia that on 20-1-1998 Kailash (P.W.2) and Chhotu Singh (hereinafter referred to as the deceased) reached Caltex Petrol Pump, Jodhpur at about 9.45 p.m. where a scooter No. RJ-19-6M/2979 which was being driver by the accused petitioner came there and the scooter dashed against the deceased after coming on wrong side, as a result of which he fell down and became unconscious as he received injuries on his head and thereafter Kailash (P.W.2), Umesh (accused petitioner) and Rameshwar Dadhich (P.W.3) took the deceased to Mahatma Gandhi Hospital and on 23- 1-1998, the deceased died in the hospital. (ii) On that FIR, police started investigation and after investigation the police filed challan against the accused petitio-ner for offences under Sections 279 and 304A I.P.C. on 28-6- 1999. (iii) That after trial, the accused petitioner was convicted and sentenced for offence under Sections 270 and 304A I.P.C. By the learned Judicial Magistrate, 1st Class No. 4, Jodhpur through judgment and order dated 18-2-2002. (iv) That against the judgment and order dated 18-2-2002, the accused petitioner filed an appeal before the learned Sessions Judge, Jodhpur which was transferred to the Court of Additional Sessions Judge No. 3, Jodhpur being Criminal appeal No. 35/2003. (v) During pendency of appeal, an application was moved on behalf of the accused appellant before the learned Additional Sessions Judge under Section 391, Cr. P.C. for production of Entry No. 1888 of the OPD register dtd. 20-1-1998 in which it was mentioned as to in what manner the deceased was admitted in the hospital and by whom, he was admitted in the hospital and since it was not produced during the trial, therefore, it may be taken on record as it is very much necessary to decide the fate of two witnesses, namely, P.W.2 Kailash and P.W.3 Rameshwar and if that document is taken on record, these two witnesses cannot be regarded as eye witnesses because the decea-sed was got admitted by the accused petitioner himself and not by these two witnesses as alleged by them, meaning thereby that they were not present at the time of occur-rence. (vi) That the learned Additional Sessions Judge rejected that application inter alia holding that copy of OPD Register dtd. 20-1-1998 could have been produced by the accused appellant during trial. (iv) Aggrieved from the order dtd. 5-4-2004, this revision petition has been preferred by the accused petitioner.
(3.) In this revision petition, the main submission of the learned counsel for the accused petitioner is that as per entry No. 1888 mentioned in OPD register dtd. 20-1-1998 of M.G. Hospital, it is very much clear that the deceased was got admitted in the hospital by the accused petitioner and not by P.W.2 Kailash and P.W.3 Rameshwar and the name of the deceased was initially shown as unknown, but later on his name was entered as Chhotu Singh and he was admitted and thus, they were not the eye witnesses and for proving this fact, production of this document is very much material and hence the impugned order dtd. 5-4-2004 by which application under Section 391 Cr. P.C. was rejected is liable to be set aside and this revision petition deserves to be allowed.;