MOHD YASEEN Vs. STATE OF U P

JUDGEMENT

(1.) This application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the part of joint order dated 28.7.2012 passed by learned lower court in S.T. No. 592 of 2007, State vs. Munna and others, under Sections 363, 366, 368, 376, 34 I.P.C., P.S.- Dhoomanganj, District-Allahabad pending before the A.D.J. 23rd, Allahabad whereby the prayer to summon the Magistrate who had recorded the statement of the victim u/s 164 of Cr.P.C. as well as the prayer that the court should do the spot inspection, both have been rejected.

(2.) Heard learned counsel for the applicant, learned A.G.A. for the State and learned counsel for the opposite party no. 2. Perused the entire record.

(3.) Submission of the counsel for the applicant is that during the course of statement given by the victim-girl, some topographical facts relating to geographical or topographical situation of the town Allahabad have been denied and it was in this connection that an application under Section 310 of Cr.P.C. was moved in the court below. But the court below has wrongly rejected the same. Further submission is that some contradictory statements were made before the Magistrate, who had recorded the statement of the alleged victim-girl under Section 164 of Cr.P.C. and for that purpose the accused-applicant wanted to examine the Magistrate in order to prove those contradictory statements. Submission is that as the prayer with regard to summoning the Magistrate has already been rejected by the trial court, the accused will be deprived of their intrinsic right to impeach the worth of the witnesses' testimony and the contradictions contained in the previous statement shall remain unproved and, therefore, it shall cause prejudice to him and shall also affect the fairness of the trial. It was also submitted by counsel for the applicant that the trial court had only allowed the prayer to summon two other witnesses in order to show previous marriage of the victim with the accused. The counsel has also tried to buttress his submission by placing reliance on a Full Bench decision given by this Court in Sheo Raj vs. State, 1964 AIR(All) 290 and has tried to show that summoning of Magistrate is necessary in order to prove the statement given by the victim u/s 164 Cr.P.C.