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Judgment
A.K. Shrivastava, J.—This revision application has been filed by the applicant, who is one of the accused and has been prosecuted for certain charges including the charge u/s 302 of IPC. The defence of the applicant is that on the date when alleged murder was committed he was serving on the post of Conductor in the MPSRTC and was on duty in bus going from Damoh to Jabalpur and back. The contention of learned counsel for applicant is that although necessary application to examine the Depot Manager has been allowed but later on when the witness did not appear, the right has been closed. Learned counsel submits that in order to prove the innocence of the applicant-accused such type of harsh order ought not to have been passed shutting down the defence which applicant-accused wants to adduce.
On the other hand, learned Public Prosecutor has argued in support of the impugned order and submitted that for last two years matter is pending for recording defence evidence but the evidence has not been completed and therefore rightly the right has been closed.
Having heard learned counsel for the parties, I am of the view that this revision application deserves to be allowed.
Indeed when specific defence of present applicant/accused is that he was serving on the post of Conductor on a bus of MPSTRC was going from Damoh to Jabalpur and back and the application to adduce evidence in defence has been allowed, indeed it was for the Court to call for the concerning witnesses and to examine them in the Court. Merely because case is pending for two years for defence evidence and some of witnesses have been examined would not straightway entail into closer of right of applicant to examine Depot Manager, who assigned the duty of applicant as Conductor on the alleged date of incident. Resultantly, this revision succeeds and is hereby allowed. The impugned order dated 26.09.2003 passed in S.T. No. 113/2005 is hereby set aside and learned Trial Court is directed to summon the concerning witnesses in defence.