Akhtar Jehan vs State of U.P. and Others

Ravindra Singh, J.—Heard Sri Arun Sinha, learned counsel for the applicant and the learned A.G.A. for the State of U.P. The learned counsel for O.P. Nos. 2, 3, 4 and 5 are not present. This application has been filed by the applicant with a prayer to quash the order dated 11.2.2013 passed by the learned Additional District and Sessions Judge, ex-cadre Court No. 2, Sultanpur in S.T. No. 394 of 2010 whereby the application under Section 311, Cr.P.C. recalling the witness Mohd. Kalim, P.W. 1 for further cross-examination, has been refused.

It is submitted by the learned counsel for the applicant that it is a case in which the son of the applicant have been killed, its F.I.R. has been lodged by the brother of the applicant namely Mohd. Kalim, after completing the investigation charge-sheet has been submitted, on which the learned Magistrate concerned has taken cognizance and the case has been committed to the Court of Session. The session trial is pending in the court of Additional Sessions Judge, ex-cadre, Court No. 2, Sultanpur vide S.T. No. 394 of 2010 in which examination-in-chief of P.W. 1 Mohd. Kalim has been recorded on 19.9.2011 but P.W. 1 Mohd. Kalim was not cross-examined from the side of the accused, therefore, his evidence was closed by the trial court on 19.9.2011. Thereafter, on 27.9.2012 i.e., after more than one years, P.W. 1 Mohd. Kalim was cross-examined in which he was declared hostile. P.W. 1 Mohd. Kalim was won over by the accused persons, in such'' circumstance, the applicant moved an application before the trial court permitting her to do the pairvi of this case, the same was allowed on 28.9.2012. Thereafter, the applicant moved an application under Section 311, Cr.P.C. mentioning therein the specific questions on which further cross-examination of P.W. 1 was essentially required, for the just decision of the case but the trial court without any proper reason, rejected the application moved by the applicant under Section 311, Cr.P.C. In case, P.W. 1 Mohd. Kalim is not recalled and the applicant is not permitted to cross-examine him, the ends of justice will not meet.

In reply to the above contention, it is submitted by the learned A.G.A. that P.W. 1 has supported the prosecution story in his examination-in-chief but he has been declared hostile when he was cross-examined after a period of more than one year. The learned trial court has not committed any error in rejecting the application moved under Section 311, Cr.P.C.

Considering the submission made by the learned A.G.A. and from the perusal of the record it reveals that in the present case the brother of the applicant has lodged the first information report, his examination-in-chief has been recorded before the trial court as P.W. 1, he has supported the prosecution story but on the day of examination-in-chief, he was not cross-examined by the accused persons, therefore, the evidence was closed. After expiry of more than one year, he was cross-examined by the accused persons, in which he has been declared hostile. In the present case the son of the applicant has been killed, P.W. 1, who is the real brother of the applicant has been won over, thereafter the application moved by the applicant to do the pairvi of this case has been allowed then she moved an application under Section 311, Cr.P.C. mentioning therein five specific questions on which the cross-examination of P.W. 1 was essential required. The learned trial court has rejected the application under Section 311 vide impugned order dated 11.2.2013. The trial court has not considered the fact that in the present case the applicant has been permitted to do the pairvi of the case and P.W. 1 who supported the prosecution story in his examination-in-chief on 19.9.2011, thereafter, he was not cross-examined on that day, his evidence was closed but after the expiry of one year, he was cross-examined then he was declared hostile. It is a case in which the son of the applicant has been murdered. The first informant Mohd. Kalim (P.W. 1) has supported the prosecution version in his cross-examination, after closing his evidence. He was cross-examined after a period of one year, in which he has been declared hostile, it has not happened in normal circumstances, but in abnormal circumstances, i.e., after winning over the witness. In such circumstances, to meet the end of justice recalling of P.W. 1 under Section 311, Cr.P.C. to cross-examine on the questions given in such application was essentially required. The trial court has committed error, in passing the impugned order dated 11.2.2013. The impugned order dated 11.2.2013 is illegal and is hereby set aside. It is directed that opportunity shall be provided to the applicant to cross-examine P.W. 1 Mohd. Kalim on the questions given in the application under Section 311, Cr.P.C. without granting unnecessary adjournment. Accordingly, this application is allowed.