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2003 DIGILAW 2380 (ALL)

SANJEEV v. STATE OF U P

2003-10-08

K.N.OJHA

body2003
K. N. OJHA, J. Instant revision has been preferred against order dated 30-6-2000 passed by learned Sessions Judge, Muzaffar Nagar, in Sessions Trial No. 274 of 2000, State v. Sanjeev and others, under Section 302, 120b IPC, police station Titabi, district Muzaffar Nagar, by which three fact witnesses have been recalled for re-examination and the Sessions Trial of co-accused Yogesh whose case was later on committed to the Court of Sessions, has been consolidated with the Sessions Trial of the revisionists. 2. Heard Sri S. P. S. Raghav, learned counsel for the revisionist, Sri Shekhar Yadav, learned AGA and Sri Akhilesh Singh, learned counsel for the opposite party No. 2 and have gone through the record. 3. The fact of the case is that S. T. No. 274 of 2000 is pending in the Court of Sessions Judge, Muzaffar Nagar against the revisionists Sanjeev, Har Pal and Smt. Jagveeri Devi, residents of village Mukundpur, police station Titabi, district Muzaffar Nagar, under Sections 302, 120b I. P. C. The charge under Sections 302, 120b I. P. C. has been framed against the accused revisionists and three fact witnesses PW 1 Pappi, PW 2 Sheetal and PW 3 Parvender alias Bittu were examined in June 2000. The case could not be finally decided. In the meanwhile absconding co-accused of the crime, Yogesh Surrendered before the Magistrate and his case was committed to the Court of Sessions. His case was registered as Sessions Trial No. 909 of 2000, State v. Yogesh. Learned ADGC (Criminal) moved an application to consolidate the case of Yogesh with the case of the co-accused revisionists. A prayer was made for recall of the witnesses also. The prayer for consolidating both the S. T. No. 274 of 2000 and S. T. No. 909 of 2000 was allowed and three fact witnesses, who were already examined six months before in the case in which the revisionists are accused, were recalled for re-examination. Aggrieved there from instant revision has been preferred. 4. Section 223 of Cr. P. C. contemplates that accused persons may be charged and tried together provided the offence is committed in the course of same transaction or there is charge of abatement or the offence are of the same kind or the offences are committed in the same transaction or the offences are of like nature and connected to each other. P. C. contemplates that accused persons may be charged and tried together provided the offence is committed in the course of same transaction or there is charge of abatement or the offence are of the same kind or the offences are committed in the same transaction or the offences are of like nature and connected to each other. But proviso clause of Section 223 of the Code envisaged that where a number of persons are charged with separate offences and if such persons by an application in writing so desire and if the Magistrate is satisfied that such persons would not be prejudicially affected thereby and it is expedient so to do, try all such persons together. 5. Thus three conditions must exist before separate trials of accused persons of the same crime of related crime are made together. Firstly, there should be an application in writing that their cases should be tried together. Secondly, the Court is satisfied that no accused is prejudicially affected and thirdly, it is expedient so to do, all such persons be tried together. 6. In the instant case it is a fact that the revisionists, who are accused in S. T. No. 274 of 2000 and co- accused Yogesh, who is accused in S. T. No. 909 of 2000 are accused in the same crime, but the stages of their cases are different. In the case of the revisionists not only charges have been framed, but all the three fact witnesses have been examined. Photostat copies of statements of all these fact witnesses are annexed with the revision, which are Annexure Nos. 2, 3 & 4. The statement of these fact witnesses shows that they were declared hostile by the prosecution because they stated that some persons covering their faces with cloths came and committed murder of two persons of the family of the complainant Pappi. When six months have passed away, the statements of these witnesses were recorded, Yogesh Surrendered and his case was committed to the Court of Sessions, an application under Section 311 of Cr. P. C. was moved, which was allowed by the Court of Sessions. 7. The revisionists have no grievance if Yogesh is tried separately but their grievance is that their case has been consolidated and the three witnesses, who were examined against the revisionists have been recalled. P. C. was moved, which was allowed by the Court of Sessions. 7. The revisionists have no grievance if Yogesh is tried separately but their grievance is that their case has been consolidated and the three witnesses, who were examined against the revisionists have been recalled. If the three witnesses, who are said to be eye-witnesses of the occurrence have been declared hostile as they have stated that they could not see the real culprits because they were covering their faces with cloths, the revisionists are naturally under impression that there is no eyewitness to state against them and they may press for their acquittal. But if these witnesses are again recalled, the revisionists have again to cross-examine these witnesses and only their re-examination may disclose as to whether they are making the statement as they had already made or they have changed their mind or they are supporting the prosecution. In such circumstances if the revisionists feel that in case their Sessions Trial is consolidated with the Sessions Trial of Yogesh, they may be prejudicially affected thereby, there is force in the contention made by the learned counsel for the revisionists. 8. If in the case of the revisionists only charges would have been framed and no witnesses would have been examined they would not have been affected prejudicially and it would have been expedient if the charges were framed against the co-accused Yogesh both the cases would have been consolidated and the witnesses would have been examined. There is no ground to consolidate both the Sessions Trials. By consolidating both the Sessions Trials there may be possibility of prejudice to the revisionists. If the Sessions Trials are not consolidated there will be no prejudice to the co-accused Yogesh as he will have full opportunity for cross-examining these witnesses and may put his defence. 9. In view of the above discussions this Court is of the opinion that the impugned order dated 30-6-2000 is not in accordance with the provisions of Section 223 of Cr. P. C. 10. Sri Akhilesh Singh, learned counsel for the opposite party No. 2 has cited: - (1) 1978 SCC (Cri) 219, Keshav Ram Bora v. State of Assam. (2) 2002 (7) SCC 543 , B. S. Sindhey v. State of Maharashtra. (3) 1974 SCC (Cri) 355, Raghunandan v. State of U. P. . 11. P. C. 10. Sri Akhilesh Singh, learned counsel for the opposite party No. 2 has cited: - (1) 1978 SCC (Cri) 219, Keshav Ram Bora v. State of Assam. (2) 2002 (7) SCC 543 , B. S. Sindhey v. State of Maharashtra. (3) 1974 SCC (Cri) 355, Raghunandan v. State of U. P. . 11. The learned counsel submits that the Court is fully empowered to recall any witness at any stage in order to ascertain the truth of the fact under Section 311 Cr. P. C. It is also submitted that even if a witness is declared hostile his testimony is not to be discarded ipso facto and scrutiny of evidence is still to be made as to what is the truth in his statement and it is duty of the Court to separate the chatt from the grain. Neither of these rulings is on the point of prejudice being caused due to consolidation of two Sessions Trials. The learned counsel for the revisionist does not deny the power of the Court that witnesses can be summoned at any stage to ascertain the truth but emphasis is laid as to whether in a particular circumstance recall of any such witness is justified. Exercise of power is to be done in such matters in the light of the fact that prejudice is not caused to any of the party and it is expedient so to do to make trial of both the cases together. Exercise of discretion is not to be made arbitrarily. 12. In view of the above discussion this Court is of the view that the order dated 30-6-2000 passed by the Court below is not is accordance with law and deserves to be set aside. 13. The revision is allowed and the impugned order dated 30-6-2000 passed by the learned Sessions Judge, Muzaffar Nagar, is set aside. The learned Sessions Judge, Muzaffar Nagar, will proceed with the Sessions Trial Nos. 274 of 2000 and 909 of 2000 separately, as observed in the body of this judgment. Revision allowed. .