YOGENDRA SINGH Vs. STATE OF U P

JUDGEMENT

(1.) D. C. Srivastava, J. This petition under Section 482 Cr. P. C. has been filed by Yogendra Singh, informant of the F. I. R. out of which Sessions Trial Numbers 388 of 1990 and 388-A of 1990 State v. Onkar and others and State v. Amroj respectively proceeded. It was a case of double murder in which Mahi Chand and Kamal Singh were done to death and six persons sustained injuries. The trial proceeded. Statements of prosecution wit nesses were recorded and the trial reached the stage of recording statements of the ac cused under Section 313 Cr. P. C. on that date Amroj, one of the accused, absconded. Consequently his case was separated and separate sessions Trial No. 388-A of 1990 was given. Other accused were tried in S. T. No. 388 of 1990 and they were ultimately acquitted. Subsequently Amroj appeared and his trial began. It was not a case of de novo trial. On the other hand only state ment of Amroj he was to be recorded and thereafter if he desired to adduce defence evidence the same should have been ac cepted and recorded and after hearing argu ments judgment was to be delivered. How ever, an application was moved on 1- 2-1996 by the Prosecutor requesting that Kalendra, who is an injured witness in the case, be examined inasmuch as he was present in the Court and his evidence was essential for proper decision of the case. This application was rejected by the trial Judge mainly on the ground that because the prosecution had closed its evidence and other accused were acquitted after full trial, the prosecution cannot be permitted to fill in the lacuna in the case, in the trial of Amroj, by examining Kalendra, an injured witness. It is for quash ing of the order dated 16-2-1996 aforesaid, passed by IX Additional Sessions Judge, Meerut that this petition has been filed.

(2.) THE short point, involved in this petition, is as to what is the scope of Section 311 Cr. P. C. in such matter: "311. Power to summon material witness or examine person present.-Any Court may, at any stage of any inquiry trial or other proceeding under this code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. "

(3.) IN my view, acquittal of the other co-accused is not very material because the learned counsel for the petitioner was in formed that the State has preferred an ap peal against acquittal which is pending in the High Court. Of course a serious and heinous offence was committed in which two persons were done to death and six persons received injuries. The order of ac quittal, in these circumstances, during pen dency of the State appeal, has not become final.