(1.) Heard Ms. Pushpa Joshi, Advocate for the revisionist. Sri G.S. Sandhu, learned G.A. for the respondent. Revisionist is assailing the order dated 23.08.2005 passed by Additional Sessions Judge/Fast Track Court, Kashipur Distt: U.S. Nagar thereby rejecting the application of the revisionist, moved u/s 311 Cr.P.C. to recall PW2 for further cross examination.
(2.) Brief facts of the case are that in Session Trial No.2,3,4 and 5 of 2003 State Vs. Wahid & others under section 394, 302 IPC and section 25, 4/25 Arms Act, P.S. Kashipur, the revisionist/accused has moved an application supported by an affidavit for recalling of PW 2 for further cross examination in the light of his alleged statement dated 17.04.2002 allegedly recorded by I.O. under section 161 Cr.P.C. The main ground taken was that statement of PW2 recorded under section 161 Cr.P.C. ON 17.04.2002 was not made the part of case diary intentionally.
(3.) The prosecution opposed the application on the ground that so called statement under section 161 Cr.P.C. was not recorded by I.O. and is not part of the case diary. Hence, there is no question of confronting the PW2 with the alleged statement. Learned Trial Court has observed that it is not proved on record that alleged statement dated 17.04.2002 was infect recorded by I.O., learned Trial Court has further observed that alleged statement dated 17.04.2002 is not a part of case diary. Trial Court refused to exercise discretion in favour of the accused and rejected the application of the revisionist u/s 311 Cr.P.C. to recall PW2. Ms. Pushpa Joshi, learned counsel for the revisionist argued that by further cross examination of PW2 it can be proved that alleged statement dated 17.04.2002, which was annexed with the affidavit in support of application under section 311 Cr.P.C., was infect recorded by I.O. and he deliberately not made the same part of the case diary.