Santosh Pathak vs State of U.P.

Shri Kant Tripathi, J.—Heard Mr. Daya Shankar Mishra for the applicant and the learned A.G.A. for the Respondent and perused the record.

With the consent of the learned Counsel for the applicant and the learned A.G.A., the instant petition is being disposed of finally at the stage of admission.

It appears that S.T. No. 285 of 2003, State v. Virendra Kumar Yadav alias Pappu S.T. No. 285 of 2003, under Sections 147, 148, 149 and 302, I.P.C. is pending in the Court of the Additional Sessions Judge, Court No. 5, Varanasi, which has reached up to the stage of defence evidence. The applicant Santosh Pathak is one of the accused persons.

The applicant moved two different applications on 8.12.2009 u/s 311, Cr. P.C. The first application was for summoning P.W. 1 Ram Narain Giri (the father of the deceased) and P.W. 23 Manoj Giri (the brother of the deceased) for re-cross-examination. In regard to this application, it was submitted that these two witnesses have stated that they were present on the scene of occurrence and had taken the deceased in injured condition first of all to the police station and thereafter to the hospitals. According to the learned Counsel for the applicant, these two witnesses have not been cross-examined properly in regard to these facts. Therefore, the applicant prayed for summoning the aforesaid two witnesses for further cross-examination. The learned trial court has very elaborately dealt with the submissions of the learned Counsel for the applicant in regard to the summoning of the aforesaid two witnesses and had arrived at the conclusion that it was not proper to re-cross-examine these two witnesses. The learned trial court apprehended that the effort to summon the aforesaid two witnesses was being made to twist the prosecution case as the said witnesses had been won over. In my opinion, it is not proper to see whether or not the said two witnesses had been won over but it is crystal clear that they have been thoroughly cross-examined in regard to each and every aspects of the matter including in regard to the fact that they were present at the time of the occurrence and they took the deceased in an auto rickshaw from the place of occurrence to the police station and thereafter to the hospitals. Copies of the statements of the two witnesses have been annexed to the supplementary affidavit. When the witnesses P.W. 1 and P.W. 23 have already been cross-examined at length, there was no justification to recall them for further cross-examination. The order of the learned Additional Sessions Judge in this regard seems to be perfectly correct and requires no interference.

The second application moved on behalf of the applicant was for summoning the Head Constable Amit Kumar Singh, who was cited as witness No. 6 in the charge-sheet. The learned lower court rejected the applicant''s plea for summoning this witness on the ground that it was the discretion of the public prosecutor to examine or not to examine him. When the public prosecutor did not consider it proper to examine the Head Constable Amit Kumar Singh and discharged him, it was not proper to summon him on the request of the accused. Accordingly, the learned Additional Sessions Judge rejected the second application. In my opinion, if the evidence of a witness is necessary for dispensation of justice, the Court has ample power to summon the witness notwithstanding that the public prosecutor is not willing to examine him or has discharged him earlier. It is the duty of the Court to procure all such relevant evidences as are necessary for proper decision of the case. If the evidence of the Head Constable Amit Kumar Singh was necessary for proper decision of the case, the prayer for examining him as a witness should not be refused and it is immaterial whether the evidence of the witness would be in favour of the prosecution or the accused. The paramount consideration for the learned trial court was to see whether or not the evidence of the Head Constable Amit Kumar Singh was relevant and necessary for dispensation of justice in the case. Mr. Daya Shankar Mishra, the learned Counsel for the applicant submitted that the prosecution is relying on a dying declaration allegedly made by the deceased and the accused persons are seriously disputing the genuineness of the dying declaration. It is said that the Head Constable Amit Kumar Singh had taken the deceased from the police station to the concerned hospital along with P.W. 1 and P.W. 23 and remained in the company of the deceased from the police station up to the hospital. Therefore, the Head Constable Amit Kumar Singh was a very material witness to depose as to what was the mental and physical condition of the deceased, when he was being escorted by the said Head Constable, (Whether the deceased was unconscious, semiconscious or was in fully senses). The proper independent witness of this fact was the Head Constable Amit Kumar Singh. Therefore, the learned trial court was not justified in rejecting the application for summoning the witness Head Constable Amit Kumar Singh.

I have gone through the materials on record. The learned lower court has nowhere arrived at the conclusion that the evidence of the Head Constable Amit Kumar Singh was not relevant and necessary for dispensation of justice. Therefore, the learned trial court has failed to consider this basic requirement of law and rejected the applicant''s prayer only on the ground that the public prosecutor was not willing to examine that witness. In my view, the approach of the learned lower court was not correct in law. It was the duty of the Court to ensure whether or not the evidence of the aforesaid Head Constable was relevant and necessary for dispensation of justice. If it was so, he should have summoned the witness.

In view of the aforesaid reasons, the applicant''s petition u/s 482, Cr. P.C. is partly allowed. The impugned order refusing to summon P.W. 1 Ram Narain Giri and P.W. 23 Manoj Giri for further cross-examination is confirmed. The impugned order refusing to summon the Head Constable Amit Kumar Singh (witness No. 6 of the charge-sheet) is set aside and the learned lower court is directed to reconsider the applicant''s application dated 8.12.2009 in this regard and pass appropriate order thereon in accordance with law, keeping in view the observations made herein before.

In view of the fact that the trial is very old, the learned Additional Sessions Judge will try to dispose of the application dated 8.12.2009 positively within one month from the date of receipt of a certified copy of this order.