SHAHJAD Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) PRESENT Application under Section 482 Cr.P.C. is filed with the prayer to quash the order dated 11.12.2014 passed by Additional Sessions Judge, Vikas Nagar, Dehradun in Sessions Trial No. 87 of 2008, captioned as State vs. Gulsher and others, under Sections 363, 366, 368, 323, 504 and 376 of IPC, whereby the Court below has dismissed the application filed by the applicant under Section 311 Cr.P.C. numbered as Application No. 175Ka and further to allow the said application.

(2.) THE applicants are facing trial for the offences punishable under Sections 363, 366, 368, 323, 504 and 376 of IPC in the Court of Additional Sessions Judge, Vikas Nagar. After conclusion of the prosecution evidence, the Sessions Trial was listed for statements of the accused persons under Section 313 Cr.P.C.

(3.) THE accused persons wanted to further cross -examine PW 1 Shamina, whose evidence was also recorded on 18.05.2011, whereas she was cross -examine on behalf of Shahjad and Aslam (present applicants), she was not at all cross -examined on behalf of the accused Gulsher Such statements were recorded by the trial court. Thereafter an application under Section 311 Cr.P.C. was filed on behalf of the accused persons saying that some questions are required to be asked to PW 1 Samina and therefore, PW 1 should be summoned for further cross -examination. The trial court, while deciding such an application of the applicants, held that when PW 1 entered into the witness -box on 18.05.2011, she was not cross -examined on behalf of the accused persons. The trial court, therefore, held that PW 2 cannot be summoned for further cross -examination in the wake of new facts arising in the statement of some other witnesses. The Sessions Trial is pending since 2008 and has slowly graduated to the level of defence evidence/arguments. The contention of learned counsel for the applicants is that the accused persons allegedly committed rape with the victim at many places whereas, there is no medical proof of rape with the victim.