MUZAFFAR RASOOL LONE Vs. STATE

JUDGEMENT

(1.) Case F.I.R No. 198/2010 was registered on 14-10-2010 u/s 447, 302 & 325 RFC against the petitioner. The investigation culminated in filing of report u/s 173 Cr.PC against the petitioner. The petitioner pleaded not guilty to the charges and, accordingly, he was put on trial. The prosecution examined some of the witnesses, who, in their depositions before the learned trial Court stated that Mst. Asifa Hamid and Mst. Razia Hamid Dauthters of Mst. Asha, who was, allegedly, killed by the petitioner, have seen the occurrence. Their statements were not recorded u/s 161 Cr.PC during the investigation of the case. In view of the statements of the prose cution witnesses that these daughters of the deceased were present on spot when the alleged occurrence took place and are, thus, eye witnesses of the crime, appli cation u/s 540 Cr.PC was filed by the learned Public Prosecutor seeking summoning of these two persons so that their statements are recorded. The application was resisted by the petitioner, in as much as, in his objections, it was stated by him that during the investigation of the case, statements of the eye witnesses u/s 161 Cr.PC were never recorded and no explanation is forthcoming as to why father of these two girls did not produce them before the police when the case was being investi gated. The application for summoning of these witnesses was also resisted on the ground that husband of the deceased and other witnesses have been examined and there is no need to examine other witnesses and that the application has been filed at a belated stage.

(2.) The learned trial Court, vide order dated 07-03-2012 allowed the application and directed Mst. Asifa Hamid and Mst. Razia Hamid Daughters of Shri Ham-idullah Ganai R/O Garola, Bandipora to appear before the Court for getting their statements recorded. It is this order which is called in question in this petition.

(3.) Mr. S.T.Hussain, learned counsel for the petitioner submitted that the learned trial Judge, in the facts of this case, could not exercise the power u/s 540 Cr.PC for summoning of the aforementioned persons. He further submitted that, in the facts and circumstances of this case, there was no requirement of summoning of the aforementioned witnesses. Learned counsel further submitted that the trial has been delayed because of filing of application and passing of the impugned order, where under, these two ladies have been ordered to appear for deposing before the learned trial Court. Learned counsel, in support of his contention, referred to and relied upon paragraphs 17,18 & 20 of the judgement of the Hon'ble Supreme Court in case titled Vijay Kumar-v. State of Uttar Pradesh & another, 2011 3 SCC(Cri) 371 and of the judgement of the Hon'ble Supreme Court in case titled Gurdeep Singh v. State of Punjab and others, 2012 1 SCC(Cri) 584. The respective paragraphs of the aforementioned judgements are reproduced hereun-der for facility of reference :