RAM AKHTYAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This revision petition under Section 397/401 of the Code of Criminal Procedure 1973 has been preferred against an order dated 25th May, 2010 passed in Sessions Case No. 49/03 by the Fifth Additional Sessions Judge, Morena, dismissing thereby the application under Section 311 of Code of Criminal Procedure for examination of prosecution witness Satish Chandra Dubey, the Investigating Officer of Crime No. 359/2001 registered at Police Station, Morena for commission of offence under Sections 302, 207, 147, 148, 149 and 294 of I.P.C. against the Petitioners/accused and after investigation submitted Final Report before the Criminal Court. The prosecution in trial had given up him for proving the contradictions and omissions in the statements of material prosecution witnesses of the case.

(2.) The facts, in short just for decision of this petition, are that on 12th September 2001 at Ambah bye-pass road near dried Pipal tree, accused Ram Akhtyar, Hari Kishan, Balkishan, Ram Aautar and Shiv Aautar caused death of Om Prakash. Accordingly, Crime No. 359/2001 was registered against above-named accused by Police Station Civil Lines, Morena on the report of Ajay Sharma. After investigation, the charge-sheet was filed. The trial is pending in Sessions Court at Morena. It is alleged that prior to the incident in the month of January 1999, Raghuveer Singh, father of accused/Petitioner Ram Akhtyar was murdered. On the report of Ram Akhtyar, Petitioner No. 1, an FIR was registered against Om Prakash (deceased in the present trial) and Raj Kumar, Ram Lakhan and Jagdish. The Sessions trial was pending before the Sessions Judge, Morena. During trial of the previous Sessions case relating to the murder of Raghuveer Singh on the day of subsequent crime relating to the murder of Om Prakash, the deceased was released and was going on a scooter with Brij Kishore and Ajay Sharma (complainant), who was murdered by the Petitioner accompanying with other co-accused. After investigation, the charge sheet was filed only against three accused while other three were not found guilty. At later stage, the trial court took cognizance against those released accused, under Section 319 of Code of Criminal Procedure The prosecution without examining witness Satish Chandra Dubey had given him up. An application under Section 311 of Code of Criminal Procedure for summoning this witness for his examination was submitted by the Petitioners-accused, which was dismissed by the trial Judge, under the impugned order.

(3.) The contention of the learned Counsel for the Petitioners are that witness Satish Chandra Dubey, the Investigating Officer is the material witness for both the sides. He is essential for defence to prove the material contradictions and omissions in the evidence of the scribe of the FIR and other eyewitnesses of the incident. Therefore, it is requested that by allowing the petition the learned trial Judge be directed to summon the said witness for his examination by prosecution and the opportunity to crass examination him be also extended to the accused/Petitioners.