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Allahabad High Court · body

2010 DIGILAW 2600 (ALL)

SHANEY ALI v. STATE OF U. P.

2010-08-26

RAVINDRA SINGH

body2010
JUDGMENT Hon'ble Ravindra Singh,J. Heard Sri Ravindra Sharma learned counsel for the applicant, learned A.G.A. for the State of U.P. and Sri P.C. Srivastava learned counsel appearing for the opposite party no. 2. This application has been moved by the applicant Shaney Ali with a prayer for quashing the order dated 22.07.2010 passed by learned Additional Sessions Judge/F.T.C. IIIrd, Budaun in S.T. No. 1279 of 2008 under Sections 302 and 307 I.P.C., whereby the application filed by the applicant to summon Km. Bunti in the police custody and to produce her in the court as a defence witness, has been rejected. The facts in brief of this case are that the F. I. R. has been lodged by Aamir Ali on 06.02.2008 at 6.35 p.m. at Allapur in Case Crime No. 55 of 2008 under Section 307 I.P.C. against the applicant Shaney Ali and co-accused Javed alleging therein that on 06.02.2008 the younger brother of the first informant namely Younis was playing the cricket in which some altercation had taken place between him and the co-accused Javed but the matter was pacified by the persons who were present there. The co-accused Javed had extended to threat the Younis on the same day at about 4.00 p.m. Younis alongwith his brother Mohabbat Ali was standing near the transfer which was in out side of his house. The applicant and co-accused Javed armed with unauthorized weapons came there and discharged the shots by the applicant towards the Younis. Consequently they sustained gun shot injuries. Both of them in injured conditions were taken to District Hospital, Budaun. The accused-persons have been charge sheeted. Their case was committed to the court of Session, the same is pending in the Court of Additional Sessions Judge/ F.T.C. IIIrd Budaun in S.T. No. 1279 of 2008 under Section 302, 307 I.P.C. From the side of the prosecution all the witnesses have been examined. The statements of the accused persons under Section 313 Cr.P.C. were recorded on 13.04.2010. The opportunity was given to the accused persons to adduce the evidence in defence but the accused were refused to produce any evidence in defence. The matter was fixed for the arguments but deliberately it was not argued form the side of the accused persons. All of sudden on 19.07.2010, an application was moved to summon the witness Km. The opportunity was given to the accused persons to adduce the evidence in defence but the accused were refused to produce any evidence in defence. The matter was fixed for the arguments but deliberately it was not argued form the side of the accused persons. All of sudden on 19.07.2010, an application was moved to summon the witness Km. Banti in exercise of power conferred under Section 311 Cr.P.C., the same was rejected by the Trial Court on 20.07.2010. Thereafter, an another application was moved before the trial court to summon Km. Banti in police custody, as a defence witness, the same has also been rejected by the Trial Court on 22.07.2010. It has been contended by the learned counsel for the applicant that Km. Banti is daughter of the deceased. She wanted to marry with the applicant. The deceased was having no objection whereas other family members were objecting. On the date of the alleged occurrence, some altercation had taken place. The firing was done by family members of the deceased towards Km. Banti. Luckily she did not sustained any injury but the deceased sustained injuries. Km. Banti is the eye witness of the alleged incident. She was not agreed to support the prosecution story only because it was concocted that is why she had not been interrogated during investigation by the Investigating Officer and she had not been made the witness of the alleged incident. For the just decision of the case, the evidence of Km. Banti is essentially required. The learned trial court has committed error by rejecting the application under Section 311 Cr.P.C. The learned Trial Court was of the view that Km. Banti may be summoned as a defence witness but the trial court has committed a manifest error in rejecting the application filed by the applicant to summon Km. Banti in police custody as a defence witness. The order dated 22.07.2010 is illegal the same may be set aside and Km. Banti may be summoned as a defence witness. It is the right of the accused to adduce the evidence in the defence under Section 233 of the Cr.P.C.. In reply to the above contention, it has been submitted by the learned A.G.A. and Sri P.C. Srivastave appearing for the opposite party no. 2 that in the present case Km. Banti may be summoned as a defence witness. It is the right of the accused to adduce the evidence in the defence under Section 233 of the Cr.P.C.. In reply to the above contention, it has been submitted by the learned A.G.A. and Sri P.C. Srivastave appearing for the opposite party no. 2 that in the present case Km. Banti is not a witness, neither her name has come in the FIR nor her name has come in the statements of the witnesses recorded under Section 161 Cr.P.C. as she is not the witness of the charge sheet. In any case, she was having no concerned with the alleged incident. The statements of the accused persons under Sections 313 Cr.P.C. were recorded and they have refused to adduce the evidence in the defence. Thereafter for the purpose of lingering of the proceedings, an application under Section 311 Cr.P.C. has been filed with ulterior motive only because they were trying to tamper with the evidence, the trial court has rightly rejected the application under Section 311 Cr.P.C. Thereafter, the application moved to summon Km. Banti in a police custody as a defence witness, the same has also been rejected by the trial court on 22.07.2010 because Km. Banti is the daughter of the deceased, in the end she was having no concerned with the alleged incident. The application was moved with different version which was not taken by the applicant in the statements recorded under section 313 Cr.P.C. nor such suggestion were given to the witnesses. The application moved shows that the proceedings may not be lingered on. The present application is void of merit and the same liable to be rejected. Considering the facts and submissions submitted by the learned counsel for the applicant, learned A.G.A. For the State and the learned counsel appearing for the opposite party no.2 and from the perusal of the record it appears that in the present case, Km. Banti is not a witness of the alleged incident. Her name has not been given by the I.O. in the list of witnesses by any witness, her presence has not been shown as alleged in the occurrence. The witnesses of the prosecution have been examined by the trial court. The statements of the accused persons under Section 313 Cr.P.C. have been recorded by the trial court. Her name has not been given by the I.O. in the list of witnesses by any witness, her presence has not been shown as alleged in the occurrence. The witnesses of the prosecution have been examined by the trial court. The statements of the accused persons under Section 313 Cr.P.C. have been recorded by the trial court. The accused persons have refused to adduce evidence in the defence. The matter was fixed for the argument but deliberately the arguments were not made by the accused persons. On many occasions, the matter was adjourned, then an application under Section 311 Cr.P.C. was moved with a prayer to summon Km. Banti as a witness. The learned Trial Court has rejected the same on 20.07.2010 because there was no reason to summon Km. Banti as a prosecution witness. After rejection of such application the another application was moved to summon Km. Banti as a defence witness, in the police custody, the same has also been rejected by the learned Trial Court on 22.07.2010. The learned trial Court has not committed any error in rejecting such application because after recording the statements of the accused under Section 313 Cr.P.C. the opportunity was provided by the learned Trial Court to the accused persons to adduce the evidence in the defence but the accused persons refused to adduce any evidence in the defence and the matter was fixed for the argument after seeking many adjournments. Thereafter, the application under Section 311 Cr.P.C. to summon Km. Banti has been moved as a defence witness. The learned Trial Court has rightly rejected such application because there was no reason to summon Km. Banti by the Trial Court. The learned Trial Court has recorded the reasons in rejecting such application. As provided under Section 233 (3) Cr.P.C. in any case the refusal of summoning Km. Banti as a defence witness was not prejudicing the right of the accused. The learned Trial Court has not committed any error in passing the order dated 22.07.2010. The prayer for quashing the impugned order dated 22.07.2010 is refused. Accordingly, the application is dismissed. ——————