Mahabir Prasad Jain vs State of U.P.& Ors.

Palok Basu, J.—This is an application under Section 482, Cr. P. C. by Mahabir Prasad Jain, the unfortunate father of Smt. Babita, who was married to Mukesh Gupta, opposite party. The prayer in this application is that the order of the trial court dated 1641991 be quashed and certain witnesses already examined may be recalled for crossexamination and a witness not examined may be directed to be examined.

The Sessions Trial No. 9 of 1990 is proceeding in the court of Additional Sessions Judge, Meerut which is trying the subjectmatter of alleged murder of Smt. Babita at the behest of opposite party Mukesth Gupta and his mother and father. It is not disputed that the case is now fixed for delivery of judgment and arguments have already concluded. It, however, transpires that an application was moved on 11101990 which was rejected on the same day by the trial Judge which already had, more or less, the same prayer as are contained in the application dated 1641991 which has been rejected by the impugned order.

Sri Tapan Ghosh, learned Counsel for the applicant Sri D.N. Wul, learned Counsel for the opposite party and Sri Surendra Singh, learned A.G.A. for the State have been heard at the admission stage. As prayed by the learned Counsel for the parties the matter is being finally disposed of because affidavits have been exchagned and certified copies of relevant orders have been filed.

It is admitted case that the evidence of relevant witnesses including the Investigating Officer is over. A controversy has arisen, however, relating to alleged dying declaration produced by P. W. 4 Dr. D.K. Yog. It is true that during the examinationinchief of P. W.4 no reference to any dying declaration was made. He had not adverrted to any dying declaration having been prepared by him. To repeat, the examinationinchief was silent on this point. During crossexamination, however, he has at the asking of the defence Counsel produced a document from his possession which he alleges to be a dying declaration of Smt. Babita recorded by him. It is said that the said dying declaration perhaps contains endorsements or some of the relatives of the deceased also. The dispute now raised is that this dying declaration is standing in contradiction to the other dying declarations proved by the prosecution the genuineness of which has been admitted by the accused. It is disputeo however, by the learned Counsel for the accused that, in fact, this dying declaration was not in contradiction to the other dying declaration existing. However, that is not the point in controversy which calls for determination in the present case by this Court.

The fact remains, as stated above, that P.W. 4 had not referred to any dying declaration as having been recorded by him. Coupled with this, the additional fact is that in the calendar of prosecution witnesses the name of P.W. 4 Dr. D. K. Yog is not shown. The informant says that he has been taken aback and as soon as he came to know of such deposition having been made by the doctor, he made application through his Counsel which was illegally rejected by the trial court on 11101990 itself when the application was made. It is argued on behalf of the applicant that the prosecution, i.e. the informant waited till the conclusion of all other witnesses because he had hoped that Sri R.P. Singh, the Investigating Officer who had examined and through his examination it may be revealed or got elicited that such a dying declaration was not in existence as is stated to by Dr. D. K. Yog. On this reasoning it is argued that the delay in approaching this Court for a suitable order regarding recalling of Dr. D. K. Yog has been occasioned. It is further added that in the meantime some other infirmities having cropped up and a combined prayer for summoning the following witnesses was moved through the application dated 1641991:

(1) Recalling of P.W. 2 and 3 (father and mother).

(2) Recalling of Dr. D.K. Yog.

(3) Calling R.P. Singh Investigating Officer.

(4) Calling the Expert.

After hearing the learned Counsel for the parties at length the only relief that may possibly be granted in this petition under Section 482, Cr. P. C. is regarding the prayer for recalling Dr. D.K. Yog for reexamination only. As stated above, this witness was not even shown in the calendar of witnesses and had not deposed to about the existence of any dying declaration nor did he state that he had prepared any dying declaration. It is only in the crossexamination that such a document had emerged. Consequently the right of the prosecution to reexamine the doctor on that limited aspect of the matter does exist.

The trial Judge''s Judgment with regard to the prayers of recalling P.W. 2, P.W. 3 and calling R.P. Singh and Expert does not require any interference. The prosecution is the best Judge on wnom it relies, who would or may be its witnesses in a murder trial. Neither it is necessary nor desirable to lay down as a matter of law that in such matters the discretion of the court in summoning any witness is limited and circumscribed by the provisions contained under Section 311, Cr. P. C.

The net result is that this application is partly allowed. While the order of the trial Judge dated 1641991 is upheld in all other respects it is modified in the interest of justice to the extent that the learned Judge will summon Dr. D.K. Yog (P.W. 4) for reexamination (not crossexamination) by the prosecution. It was pointed out by Sri D. N. Wali that this may lead to prolongation of the trial. This Court is quite sure that the Trial Judge will see that the trial is expeditiously concluded. The interim order dated 451991 is vactated. A certified copy of this order may be furnished to the learned Counsel for the parties on payment of usual charges within a week. Application partly allowed.