DAYA SHANKAR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) K. Narayan, J. Daya Shankar Singh, an accused in a murder case, has approached this Court under Section 482, Cr, P. C. for a direction to the Sessions Judge in effect making him examine two witnesses, namely, Sri Vyas Muni Misra Inspector C. B. , C. I. D. and Ballastic Expert whose report is on the record, as court witnesses. For a proper appreciation of the prayer, it will be worth while to mention a few more facts obtaining in the present trial. It appears that there was an incident, in which possibly 11 people were murder ed. An ordinary investigation by the police proceeded and at some later stage, somehow C. B. , C. I. D. was also directed to investigate the matter. Some permission was also obtained from the court in that behalf but that is not material for the purposes of the present application. The prosecution examined a number of witnesses and thereafter closed evidence, by moving applications 415-B and4l6-B. It appears from the order dated 21-6-1993, certified copy of which has been made available here by the counsel for the complainant respondent that both these applications were opposed by the accused, who had filed a regular objection (paper No. 432 Kha ). The court while allowing the applications and rejecting the objections observed that the ballastic expert may be cross-examined, if need be at proper stage. I fail to understand as to how a document once tendered in evidence and accepted by the court, could be considered for the purposes of cross-examination of the person subscribing the same. If that document is not accepted in evidence, the person may or may not be examined and if that document is accepted, the person making the document shall not be available even for oxamination-in-ehief what to say of cross-examination. However, at the same time I may mention that according to the learned Counsel for the applicant here, that document might be favourable to him but in that event also he may require presence of the person concerned for making out certain aspects.

(2.) THE other witness discharged by this order of 21-6-1993 amongst others, was Sri Vyas Muni Misra. He is a person, who is needed by the defence for the proof of certain earlier statements recorded by him under Section 161, Cr. P. C. which have already been confronted to the witnesses, I need not go for the value of those contradictions here but the fact remains that those aspects of the evidence are material.

(3.) THESE are basic principles. It cannot be denied that the Courts have also not only to do justice but also make an effort. They should come as a fair one. The duty of the prosecution unfortunately has gone astray. The police officer or the prosecution as a whole is also comprised of public servants which should be equally independent in their appioach to the decision and justice in every case. It is unfortunate that for various administrative reasons, they have become interested in decisions in their favour, which should be disapproved.