ABHINAV MISHRA Vs. STATE OF U P

JUDGEMENT

(1.) THIS application under Section 482, Cr. P.C. has been filed by the applicant Abhinav Mishra with a prayer that direction may be issued to the trial court : (i) to re-open the applicant's defence and accept the copy of layout plan of the locality and the 'compact disc' of the videography and allow them to be proved in accordance with law ; (ii) to summon the relevant weather reports pertaining to the day of the incident from the Air Force Station, Chakeri and S. S. Azad University and permit them to be proved in accordance with law ; (iii) to summon and examine the postman of the beat and Major (Mrs.) S. Mishra as defence witness ; and (iv) to direct P.W. 1 to write the text of her disputed communication addressed to the applicant and others for the purposes of comparison of her hand writing ; alternatively, to summon her B.Com. admission form from D.A.V. College, Kanpur which contain her hand writing in addition to her signature.

(2.) THE facts in brief of this case are that the applicant is the principal accused in S.T. No. 1133 of 2000 under Sections 307, 326 and 120B, I.P.C. pending in the court of learned IInd Additional Sessions Judge, Kanpur Nagar. THE F.I.R. of this case has been lodged by Dr. Pratap Sharan Srivastava on 27.1.2000 alleging therein that on 27.1.2000 at about 4.00 p.m. she alongwith his daughter Km. Arti Sharan Srivastava was going to their house, he was driving his scooter, his daughter Km. Arti Sharan Srivastava was its pillion rider, the first informant was bringing his daughter from the coaching institute, when he reached in front of Krishna Guest House where one white colour Maruti Van, was standing, thereafter he was followed by that Maruti Van, the person sitting on the front side of the Maruti Van threw acid on the first informant and his daughter Km. Arti Sharan Srivastava for the purpose of committing their murder, he was identified as Abhinav Mishra, the first informant and his daughter sustained injuries due to acid throwing, after investigation the charge-sheet has been submitted, the case has been committed to the Court of Session where charge has been framed against the applicant and others co-accused persons, the prosecution has adduced the evidence after closing the evidence of the prosecution, the matter was fixed for defence evidence but no witness was produced in defence, the learned counsel appearing on behalf of the defence submitted that no defence evidence will be produced but evidence of the defence was also closed by the trial court, but on 14.5.2004, an application was moved on the basis of the applicant for accepting the C.D. and keeping it on record, the same was rejected on 15.5.2004, the matter was fixed for argument, after closing the evidence two applications were moved on behalf of the applicant, thereafter, the application on 22.5.2004 was moved to recall the order by which the defence evidence was closed, the same was rejected by the trial court on 22.5.2004 on the ground that the evidence of defence was closed, the accused persons were trying to linger on the trial and there was no reason to recall the order by which the defence evidence was closed and the argument was going on. Being aggrieved from the order dated 22.5.2004 ; the applicant filed the present application with a prayer to issue direction as mentioned in the prayer.

(3.) CONSIDERING the submission made by the learned counsel for the applicant and the learned A.G.A. and the learned counsel for the complainant, and from the perusal of the record it appears that in the present case, evidence was closed, the defence evidence was also closed, thereafter, to recall order by which the defence witness was closed an application dated 22.5.2004 was moved in which many prayers have been made for re-opening of the applicant's defence, to accept the copy of the lay out plan of the locality and the compact disc and the vediography to summon the weather report and to summon and examine the postman and Major (Mrs.) S. Mishra, as a defence witness and to compare the hand writing of P.W. 1 etc., such prayers have been made at the stage when the arguments were going on, the prayers made in the recall application were not essentially required for the just decision of the case, the trial court has rightly observed that such an application was moved for the purpose of lingering on the trial, the trial court rejected the application vide order dated 22.5.2004, the order dated 22.5.2004, passed by the learned IInd Additional Sessions Judge, Kanpur Nagar is not suffering from any illegality, the present application is devoid of merits and therefore, the prayer for re-opening of the applicant's defence, to accept the copy of the lay out plan of the locality and the compact disc and the vediography to summon the weather report and to summon and examine the postman and Major (Mrs.) S. Mishra, as a defence witness and to compare the hand writing of P.W. 1 etc., is refused. Interim order dated 2.6.2004, passed by this Court is vacated.