Ram Akbal vs State of U.P.

Bala Krishna Narayana,J. Heard Sri D. K. Srivastava learned counsel for the revisionist and the learned A.G.A. for the State.

This criminal revision has been preferred by the revisionist who is under going trial for an offence under Section 364A I.P.C. against the order dated 03.10.2009 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 reexamination.

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 crossexamination 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.

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 crossexamination which is totally erroneous.

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.

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 reexamine any person already examined; and the Court shall summone and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of this case".

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 crossexamination for the purpose of eliciting remaining facts at the instance of the accused.

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 reexamine 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.

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 reexamination 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.

For the aforesaid reasons, the revision is allowed. The impugned order dated 03.10.2009 passed by the Additional District Judge, Court No. 6 Deoria in S.T. No. 111 of 1998 is hereby set aside.

It is provided that the court concerned shall permit the revisionist to crossexamine 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 reexamination 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.