Bal Kishun vs State of U.P. and Another

Shri Kant Tripathi, J.—Heard learned Counsel for the applicant and the learned A.G.A. and perused the record.

It appears that the applicant is being tried under Sections 452, 376, 504 and 506, I.P.C. vide the Sessions Trial No. 248 of 2009, State v. Balkishun, arising out of Case Crime No. 203 of 2007, P.S. Katera Mauranipur, District Jhansi in the court of the Sessions Judge, Jhansi. An application on behalf of the applicant was moved u/s 311 of the Code of Criminal Procedure for summoning the witness Jagdish Prasad, the husband of the complainant Smt. Rani as a prosecution witness.

It was submitted by the learned Counsel for the applicant that the aforesaid witness was one of the most important witness and, therefore, his evidence was necessary for dispensation of justice. The learned Sessions Judge refused to summon the witness Jagdish Prasad on the ground that he had been discharged by the Public Prosecutor on 10.6.2010, therefore, it was not desirable to summon him.

It was next submitted that the aforesaid witness Jagdish Prasad is one of the witness cited in the charge-sheet and his evidence has a material bearing on the merits of the case, therefore, in case the said witness is not examined, the ends of justice would be defeated. The learned Sessions Judge ought not to have guided himself at the instance of the Public Prosecutor, who had discharged the witness.

The learned A.G.A. on the other hand submitted that the learned Sessions Judge refused to summon the witness Jagdish Prasad not only on the ground that he had been discharged by the Public Prosecutor but also on the ground that he was not an eye-witness of the incident and the prosecutrix of the case has already been examined, accordingly the learned Sessions Judge found that there was no reason to summon the witness.

It is well-settled that while summoning a witness u/s 311, Code of Criminal Procedure, the Court has to see whether or not the evidence to be given by the witness is necessary for dispensation of justice. If the evidence of the witness has a material bearing on the merits of the case and is necessary for just decision of the case, the discretion, in that event should be exercised in favour of summoning the witness but if the evidence is not necessary for dispensation of justice, the prayer for summoning the witness can be refused.

The trial against the applicant is being held u/s 376, I.P.C. and also under Sections 452, 504 and 506, I.P.C. The prosecutrix, who happens to be the main witness, has already been examined and according to the learned Sessions Judge, the witness Jagdish Prasad is not an eye-witness of the occurrence, therefore, his evidence does not appear to have any material bearing on the merits of the case, therefore, the findings of the learned Sessions Judge that there was no reason to summon the witness seems to be perfectly correct and requires no interference by this Court.

The petition has no merit and is, accordingly, dismissed.