JAIPAL Vs. STATE OF U P

JUDGEMENT

(1.) HEARD Sri Devendra Dahma, learned Counsel for the applicants and learned A.G.A. for the State.

(2.) THIS application has been filed for quashing the order dated 11 -8 -2005 passed by the Additional Sessions Judge Fast Track Court No. 4, Aligarh in Sessions Trial No. 577 of 2005, State v. Jaipal and Ors. The said order under challenge is an order whereby the learned Additional Sessions Judge/Fast Track Court No. 4, Aligarh rejected the application moved on behalf of the accused. The prosecution examined the witness Rahees Pal on 3 -8 -2005 which was challenged by the applicants on the ground that the witness was not examined during investigation. The applicant has been deprived of an opportunity to confront the witness from an earlier statement recorded by the Investigating Officer under Section 161 Cr. P.C. The police had submitted a final report No. 27 on 24 -8 -1993, the complainant Smt. Sumitra Devi filed protest petition on 6 -1 -1994 and the Magistrate vide order dated 11 -1 -1994 rejected the final report and summoned the accused -exercising powers under Section 190(1) (b) Cr. P.C. The three eye -witnesses including complainant namely Smt. Sumitra Devi, Munni Devi and Rajendra Singh died during the continuation of the proceedings. The case was committed to the Sessions Court on 18 -5 -2005. After the case was committed, the Court framed charge under Section 307/34 I.P.C. fixing 13 -7 -2005 for examining the prosecution witnesses. Since three eye -witnesses were dead, only two witnesses, who remained to be examined, are the two injured witnesses Bhima and Rahees Pal. Witness Rahess Pal was produced as PW -1. The main objection is that since the name of Rahees Pal did not figure in the list of witnesses nor any application was moved by the prosecution to examine him as a prosecution witness, the Court could not examine him legally and his evidence should not be taken into consideration.

(3.) LEARNED Counsel for the applicants has cited a decision of this Court in the case of Ram Achal v. State of U.P., 1990 Criminal Law Journal 111. The submission is that the Investigating Officer under Section 161 Cr. P.C. is to interrogate any and every person supposed to interrogate and every person acquainted with the facts and the statement is to be reduced in writing. But under Section 231 Cr. P.C. the Court in the course of trial is to take all such evidence as may be produced in support of the prosecution. The emphasis is on the word 'all such evidence' which clearly signify that the right of the prosecution extends to the production of such person as a witness during the trial whose name do not figure in charge -sheet or whose statements have not been recorded under Section 161 Cr. P.C. and such witnesses can only be examined after the prior permission of the Court is obtained.