BAIJU Vs. STATE OF U.P.AND ANOTHER

JUDGEMENT

(1.) This revision under section 397/401 of the Code of Criminal Procedure is directed against the order dated 22.5.2010 passed by Additional Sessions Judge / Fast Track Court No. 2, Aligarh in Sessions Trial No. 499 of 2001 (State v. Baiju & others) arising out of case crime No. 23 of 2001 under sections 147, 148, 149, 302 IPC, Police Station Civil Lines, District Aligarh, whereby application 152 kha under section 311 Cr.P.C. filed by learned counsel for accused revisionist Baiju for summoning S.I. Birendra Singh Tomar was rejected. -

(2.) Revisionist is one of the accused in the aforesaid Sessions Trial. During the course of final arguments, application under section 311 Cr.P.C. was moved by learned defence counsel on the ground that as per the prosecution case, accused Baiju was arrested on the date of incident itself i.e. on 21.01.2001, but the prosecution had not produced any documentary or oral evidence in respect of the arrest. The F.I.R. was lodged on 21.01.2001 at 10:45 a.m. on the basis of a written report submitted by Mohd. Ashif and the investigation was handed over to S.I. A.B. Saifi, who immediately proceeded towards the place of occurrence, but in the G.D. No. 19 of 10:45 a.m., it is disclosed that the information regarding the incident was received at the police station at 9:30 a.m. This fact was also concealed by the prosecution that injured Babloo @ Aakil was admitted in the hospital on 21.01.2001 at 10:10 a.m. by accused Baiju. Under what circumstances S.I. Birendra Singh Tomar arrested Baiju from the place of occurrence without being the investigating officer of the case, has not been disclosed. It has also not been disclosed under whose direction S.I. Birendra Singh Tomar was acting. This anomaly not only makes the prosecution case doubtful, but also proves the F.I.R. to be ante timed and, therefore, to clear the doubt and for just decision of the case, S.I. Birendra Singh Tomar be summoned as a witness under section 311 Cr.P.C.

(3.) The application was opposed by prosecution. Learned Additional Sessions Judge rejected the application on the ground that the prosecution did not wish to examine S.I. Birendra Singh Tomar as its witness. The case was at the stage of final argument. The powers under section 311 Cr.P.C. are not to be exercised in favour of a particular party. If there is any ambiguity in the evidence on record, the Court will certainly summon such person, but from the evidence on record, there is no such ambiguity in the instant case. It was further observed that as per the contentions raised by the defence that the prosecution story is doubtful and F.I.R. is proved to be ante timed, then the defence may take advantage of the same, but there is no contradiction in the prosecution evidence and there was no need to summon S.I. Birendra Singh Tomar as a witness. Consequently, application was rejected. Hence, this revision.