TEEKAM SINGH Vs. THIRD ADDI SESSIONS JUDGE

JUDGEMENT

(1.) This is a revision against the order dated 19.8.1994 passed by learned III Additional Sessions Judge, Ghaziabad in Sessions Trial No. 36 of 1981. By that order learned Judge refused the prayer of the accused to recall two witnesses of the prosecution. It has been, argued that S.I.M. Singh, prepared the panchayatnamas of the deceased persons and one S.J.J. Singh, recorded the statement under section 161, Cr. P.C. of the witness Fakir Chandra Meharban. The contention of the learned counsel for the revisionists is that the prosecution did not examine those material witnesses and refused to summon the witnesses, would be fatal. The learned Judge by his order dated 19.8.1994 has stated that the accused persons took several adjournments on one pretext or the other and at the stage of argument filed this application only to delay the case. He has also found that there is no deficiency and if there is any deficiency the accused persons will get no benefit.

(2.) In a sessions trial charge is framed under section 228, Cr. P.C. Thereafter, the evidence of the witnesses of the prosecution is taken under section 231, Cr. P.C. and if no acquittal is made under section 238, Cr. P.C. the accused is called upon to adduce evidence under section 233, Cr. P.C. It appears that this application was filed after that stage when arguments are ought to be conducted under section 234, Cr. P.C. From the order-sheet of the learned Judge it appears that the occurrence took place in the year 1977 and it was committed to the, Court of Sessions in January, 1981 and the Sessions Trial was prolonged at the instance of the accused persons for long 13 years and the statements of the accused persons were recorded under section 313 Cr. P.C. on 6.7.1993. So there was no reason to call for two police witnesses for the reasons that they are the witnesses of panchayatnama and that other witnesses sought to be examined from the side of the prosecution recorded statement of a witness under section 161 Cr. P.C.

(3.) In the decision reported in (Govind Prasad Goenka v. State of U.P.) the courts have to act judicially and act upon the materials placed before it. But it is equally true that justice must be tempered with kindness and discretion curtailing the liberty of a citizen should be exercised with care and caution. The observation of Honble judge cuts both ways. It is also applicable to the complainant who is waiting for a decision for more than 13 years and the accused persons are filing petitions one after another to delay the proceeding. In the instant matter no prejudice has been caused to the accused by refusing to call for the witnesses in a belated stage, Those witnesses are not eye witnesses and I fully agree with the finding of the learned Sessions Judge that if there. has been any deficiency the accused persons will got benefit of it.