(1) By order dated 07.12.2012 the original accused persons of Sessions Case No.64 of 2010 were permitted to be joined as party respondents in the present proceedings (i.e. respondent Nos.2 to 6 herein) and accordingly Mr.Krunal L. Shahi, learned advocate, appears for the said respondent Nos.2 to 6.
(2) By way of the present petition the petitioner has challenged the legality and validity of order dated 02.06.2012 passed by Additional Sessions Judge, Limbdi below Exh.43 in Sessions Case No.43 of 2010.
(3) It appears from the record of the petition that two crosscomplaints being C.R. No.I18/2010 and C.R. No.I19/2010 came to be registered with Limbdi Police Station, Dist. Surendranagar for different offences under the Indian Penal Code, 1860 (IPC) as well as under the Arms Act and ultimately it came to be referred to the Sessions Court at Limbdi, which came to be registered as Sessions Case Nos.51 of 2010 and 64 of 2010. It is the case of the petitioner that common panchnama has been drawn for the place of incident by the investigating agency and the same is produced at Exh.29 in Sessions Case No.51 of 2010 and the very said common panchnama has been produced at Mark 5/3 in Sessions Case No.64 of 2010. That during course of examination common panchnama Mark 5/3 was sought to be brought on record and attempt was made to prove by the petitioner. However, as it was a carbon copy, objection was taken by the other side and, therefore, by the impugned order dated 02.06.2012 Additional Sessions Judge, Limbdi below Exh.43 in Sessions Case No.43 of 2010 held that as the panchnama Mark 5/3 is the carbon copy and as there is no endorsement of compared copy or true copy, the said document cannot be exhibited. However, by the very same order from the said document i.e. common panchnama (Mark 5/3) came to be exhibited for the original signatures of the panchas.
(4) Heard Mr.Dagli, learned advocate for the petitioner, Ms.Moxa Thakkar, learned Assistant Public Prosecutor for the respondentState, and Mr.Krunal L. Shahi, learned advocate for respondent Nos.2 to 6.
(5) It appears from the impugned order that the very said common panchnama has already been exhibited vide Exh.29 of the other Sessions Case No.51 of 2010, learned advocate for the petitioner has relied upon the judgment of the Apex Court in the case of Bipin Shantilal Panchal Vs. State of Gujarat & Anr., 2001 (2) G.L.H. 545 wherein it has been held that where an objection is raised with regard to admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case and thereafter the party be given an opportunity to prove the same.
(6) From bare reading of the impugned order it appears that the trial Court has committed an error by not giving even tentative number to the objected document but by permitting to exhibit the document only for the limited purpose of signatures.
(7) In view of the above, the impugned order dated 02.06.2012 passed by Additional Sessions Judge, Limbdi below Exh.43 in Sessions Case No.43 of 2010 is here by quashed and set aside and the application Exh.43 is remanded for rehearing to Additional Sessions Judge, Limbdi, who shall re consider the issue in light of the ratio laid down by the Apex Court in the case of Bipin Shantilal Panchal (supra).
(8) Application is allowed accordingly. Rule made absolute to the aforesaid extent. Direct service permitted.
Bhavesh* *** Sd/ [R.M.CHHAYA, J ]