ASTAF & OTHERS Vs. STATE OF U P

JUDGEMENT

(1.) Heard Shri Gajendra Pratap, learned Senior Counsel assisted by Shri S.P.Srivastava, Advocate on behalf of appellant No.1 and 6, Shri B.P.Tewari, Advocate on behalf of appellant No.4 and Shri Dilip Kumar, Advocate assisted by Shri Rajrshi Gupta, Advocate on behalf of appellant No.2 and Shri Kamal Krishna, learned Senior Counsel assisted by Shri Muqeem Ahmad, Advocate for informant, Shri Rajiv Kumar Mishra, learned AGA for the State.

(2.) The learned counsel for accused-appellant No.4, Ubaidur-Rahman has moved a Criminal Misc. Application No. 20127 of 2016, under Section 391 of Code of Criminal Procedure (Cr.P.C.).

(3.) The learned counsel for the accused-appellant No.4 submits that in the same incident accused-appellant Ubaidur-Rahman was also injured and a cross case had, in fact, been initiated, wherein the accused persons were later on acquitted by the trial Judge. He argued that some relevant evidence available in the file of cross case need to be seen by this Court and therefore, evidence of that case was sought to be summoned in this case by way of application under Section 391 Cr.P.C. This application is not sustainable for the simple reason that the evidence collected or recorded in some other cases, cannot be perused in the instant case unless the same had been tendered in this case either by way of cross-examination or as a defence evidence. This opportunity was available to counsel for the applicant in the trial Court, which was not availed. In any case so called dying declaration of the applicant, Ubaidur-Rahman is no longer dying declaration in view of his survival. Ubaidur-Rahman is an accused in this case. His so called previous statement in another case cannot be read in this case on behalf of prosecution.