MANGESH KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) This application has been filed by the applicant Mangesh Kumar for setting aside the order dated 30-8-2005 passed by the Additional Sessions Judge -VI/ Special Judge (EC Act), Agra in S.T. No. 523 of 2003 (State Versus Sanjay others) under Sections 498-A/304-B IPC and for directing the trial court to again summon P.W.1, Munna Lal and permit the applicant to cross examine him.

(2.) P.W.1, Munna Lal was the informant in the aforesaid case in which the allegations were that the applicant, who was the husband of the deceased Smt. and other accused including the father and mother of the applicant had sprinkled kerosene oil and set her on fire and thereafter the report was registered on 29-5-2003 at about 12.30 P.M. After committal of the case, the informant was examined as P.W. 1 and eight other witness, which included the uncle of the deceased, mother of the deceased and the formal witnesses, such as Doctor, Station Office, Circle Office etc. have also been examined. Thereafter an affidavit dated 25-10-2004 was filed by the informant, P.W.I, in which he appears he appears to have resiled from the prosecution story. The applicant would like to re-examine this witness in order to demolish the prosecution case. The application filed by the applicant for re-examining the witness has been rejected by the Special Judge by the impugned order on the grounds that nine witnesses have already been examined and the prosecution has even closed its evidence on 4-3-2005 and that the complainant P.W.1, Munna Lal was subjected to extensive cross - examination. Learned Judge further observed that two decisions cited by the applicant, which have also been cited before me, viz. Laxmi Shanker Vs. State of U.P. ACC 1998 (37) All Cri 573: (1999 All LJ 86) and Zahira Sheikh and another Vs. State of Gujarat, 2004 Cri LJ 2050: (AIR 2004 SC 3114)) do not assist the applicant as in Laxmi Shanker's case it was observed that for proving certain papers for the just decision of the case in the witness, who examined earlier, may be recalled for further cross- examination and in Zahira Sheikh's case it was observed that Presiding Judge must not be a spectator or a mere recording machine, but should play an active role in the evidence collecting process. It was thereafter observed by the Special Judge that permitting cross-examination in order enable a witness to resile from his earlier statement and to turn hostile would in fact make a court a spectator and a mere recording machine. However, the trial court appreciated the observation made by this Court in Yagya pal Vs. State of U.P., 2002 (44) All Cri (852: (2002 All LJ 2001 wherein this Court has held that in a non-compoundable case a witness should not be permitted to be recalled for further cross examination in order to enable him to resiled from his earlier statement and to deny the prosecution case as such steps would be permitting compounding of an offence in a non-compoundable case by an indirect method, which is not legally permissible.

(3.) I think the trial court was perfectly justified in rejecting the application for recall of the witness in the above noted circumstances.