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2009 DIGILAW 3504 (ALL)

RAM AKBAL v. STATE OF U. P.

2009-11-16

B.K.NARAYANA

body2009
JUDGMENT Hon’ble B.K. Narayana, J.—Heard Sri D.K. Srivastava learned counsel for the revisionist and the learned A.G.A. for the State. 2. This criminal revision has been preferred by the revisionist who is under going trial for an offence under Section 364-A, I.P.C. against the order dated 3.10.2009 passed by the Additional District Judge, Court No. 6 Deoria in Session Trial No. 111 of 1998 rejecting his application moved by him under Section 311, Cr.P.C. for summoning the prosecution witness P.W.-2 Dilip Kumar for re-examination. 3. Learned counsel for the revisionist submitted that filing of the application under Section 319, Cr. P.C. was necessitated for the reason that during the cross-examination of P.W.-2 Dilip Kumar the question as to how he identified the accused which is very essential for fair decision of the case as the incident is alleged to have taken place at night and no source of light was shown at the place of occurrence and it was not possible for the witness to have identified the revisionist, could not be asked. 4. Learned counsel for the revisionist further submitted that the Court below has rejected the application on the ground that there is no provision for recalling a witness for further cross-examination which is totally erroneous. 5. Learned A.G.A has vehemently submitted that the impugned order does not suffer from any error or infirmity and the application under Section 311, Cr.P.C. was filed by the revisionist only with the sole intention of delaying the proceeding of the trial which is pending since the year 1998. 6. I have heard rival contentions raised on behalf of the parties and also perused the record. Section 311, Cr.P.C. under which the revisionist had moved the application which has been rejected by impugned order reads as under : “Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summone and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of this case”. 7. 7. The Court below rejected the revisionist application for recalling P.W.-2 Dilip Kumar on the ground that there was no provision for recalling a witness for further cross-examination for the purpose of eliciting remaining facts at the instance of the accused. 8. The reason given by the Court below for rejecting the revisionist’s application in the impugned order is apparently erroneous. Section 311, Cr.P.C. gives ample power to a Court to recall and re-examine any witness at any stage of a trial, inquiry or other proceedings if his evidence appears to be essential to the just decision of the case. Hence the Court below manifestly erred in rejecting the revisionist’s application under Section 311, Cr.P.C. 9. I have perused the application filed by the revisionist under Section 311, Cr.P.C. before the Court below for recalling P.W.-2 Dilip Kumar, copy whereof has been filed as Annexure No. 3 to the affidavit accompanying the memo of revision and I find that the revisionist in his application had clearly stated the points on which the re-examination of P.W. 2 Dilip Kumar was sought and had also spelt out the relevance of the questions proposed to be asked from P.W.-2 Dilip Kumar. In my opinion the application moved on behalf of the revisionist fulfilled the requirements of Section 311, Cr.P.C. and the evidence of P.W.-2 Dilip Kumar appears to be essential to the just decision of the case. 10. For the aforesaid reasons, the revision is allowed. The impugned order dated 3.10.2009 passed by the Additional District Judge, Court No. 6 Deoria in S.T. No. 111 of 1998 is hereby set aside. 11. It is provided that the Court concerned shall permit the revisionist to cross-examine P.W.-2 Dilip Kumar within a period of one month from the date of production of a certified copy of this before him. Since the application for re-examination of P.W.-2 which has been moved on behalf of the applicant at a very late stage, the revisionist shall pay a cost of Rs. 5, 000/- which shall be deposited by him in the Court below on or before 22.12.2009. ————