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Rishipal Singh v. State Of U.P. & Others - WRIT - A No. 14001 of 2007 [2007] RD-AH 11058 (3 July 2007)


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Court No. 33.

Civil Misc. Writ Petition No. 14001 of 2007.

Shyam Sunder                                 ...                   Petitioner's


State of U.P. and others                  ...                   Respondents.

Hon. Sunil Ambwani, J.

Heard Sri A.B.L. Gaur, Senior Advocate assisted by Sri Saurabh Gaur for the applicant and learned A.G.A.

In a pending Sessions Trial No. 19 of 1999 between State of U.P. Vs. Sri Gopal and others under sections 147, 148,149, 302, 307 I.P.C., P.S. Kasna, District- Gautambudh Nagar, one of the accused Subhash Chandra made an application  (231-Kh) dated 13.6.2007 under Section 315 Cr.P.C. on the date when the matter was fixed for final arguments to appear as a defence witness.  The application was strongly opposed by the Additional District Government Counsel (Criminal) on the ground that the hearing is being adjourned on some or the other excuse; the defence has been given full opportunity and that no further defence witnesses may be allowed at the stage.

The Additional District and Sessions Judge (F.T.C. 5), Gautambudh Nagar hearing the case,  rejected the application by the order dated 16.6.2007, and directed the matter to be put up on 22.6.2007 observing that after the prosecution evidence and the stage of section 313 Cr.P.C. was over the defence has produced eight witnesses.  The defence evidence was concluded on 26.4.2007 and the matter was fixed for arguments  on 1.5.2007.  In the meantime one co-accused filed a Criminal Misc. Application No. 1037 of 2006 under section 482 Cr. P.C. in the High Court in which  an order was passed by the High Court  to conclude the trial, so far as it is possible within six weeks. The defence, however, did not conclude the case and has delayed the matter for two months by seeking adjournments.  The trial judge  observed that the entire purpose of the application is to further delay the trial.

Sri A.B.L. Gaur learned counsel for the applicant submits that in order to secure complete justice, the Court is competent to take any evidence including the evidence of the accused as a defence


witness if he volunteers to enter the witness box in his defence, and has relied upon the judgment in Zahira Habibullah Shekh Vs. State of Gujrat ( 2005 (suppl) ACC 386) in which the Supreme Court observed in para 27 as follows:

" 27. The object underlying section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side.  The determinative factor is whether it is essential to the just decision of the case.  The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused.  The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry.  In Section 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code".  It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

In this matter Subhash Chandra a co-accused has made an application under Section 315 Cr.P.C.  He has not chosen to file  the application under section 482 Cr.P.C.  Sri Shyam Sunder, the other co-accused is the only applicant in this application.  In para 10 of the application it is stated that the applicant has evidence that the informant, who lodged the FIR, had specifically said that  he was not present at the time of the incident; that the FIR was dictated by the investigating agency and the applicant has been named in the FIR.  This evidence will go to the root of the case and prove innocence of the applicant. In para 11 it is stated that the court below has not considered the fact that the informant was not present at the place of occurrence.  If the accused wants to give some evidence to establish his innocence, he is entitled to be permitted to produce evidence of his innocence.

A supplementary affidavit of  Satendra Sharma claiming


to be pairokar of the applicant Shyam Sunder has been filed stating therein as follows:

"3. That in brief, the FIR case is that, in between the night of 25/26th July 1999, the informant was sleeping on the roof of his house.  His father and others were sleeping in the AANGAN of house.  It is alleged that at 11 a.m. in the night, the applicant and others, armed with different weapons, entered the house and caused injuries to the deceased.  Serious injuries were caused to Chotey Lal and Satveer, due to which they died and hence the FIR.

4. That defence of the applicant is that, at the time of incident, informant Rishipal (P.W.1) was not present at the place of occurrence and the FIR he gave to the police, applicant was no named in it, which was torn and the present FIR was lodged by the S.O. of police station V.D. Uniyal (P.W.7)

5.That in the present case, another accused Satendra Sharma, who was named in the FIR, his bail application was rejected by the learned Sessions Judge.  His bail application was filed before the Hon'ble High Court, with a specific case, that at the time of occurrence, he was at Ahmedabad and working with Shivani Universal Co.  In that case, this Hon'ble Court directed the investigating officer to himself verify the fact that whether Satendra Sharma was at Ahmedabad or not at the time of incident.  

6. That, in pusuance of the directions of this Hon'ble Court, the investigating officer went to Ahmedabad and verified from the record.  He also examined General Manager of the company.  This has also come in the case diary also, on the basis of the evidence recorded under Section 161 Cr.P.C. that Satendra Sharma was present at Ahmedabad at the time of incident and on that basis, he was enlarged on bail.

7. That the applicant had a video-graphy of the informant Rishipal, admitting that at the time of incident, he was not present at the spot.  He was informed on phone at Faridabad, which is situated at a distance of 89-90 K.M. From the place of incident.  In the video-graphy he also admitted that in the FIR lodged by him, he had not named the applicant and it was torn by the I.O.  Thereafter, a second FIR was written.  This fact, that there is interpolation, has also been observed by Justice P.K. Jain, while granting bail to the co-accused Premraj.


8. That the applicant filed a Criminal Misc. Application (U/S. 482 Cr.P.C.) No. 5697 of 2007 (Shyam Vs. State of U.P. and others), in connection with producing certain evidence on record, which is not very relevant for the purpose of present case.

9. That the Section 315 Cr.P.C. specifically provides that an accused shall be a competent witness for his defence.

10. That the Section 311 Cr.P.C. is very specific that ' Any court, at any stage of any enquiry, trial or other proceedings or court summons any person as a witness or examine any person in attendance, though not summoned as a witness and re-examined as a witness, if his evidence appears to be truly essential to the just decision of the case.'

11. That in the present case, evidence of the applicant is essential for a just decision of the case.

12. That the last witness of defence Navneet has been examined on 26.4.2007 and there are no delaying tactics on part of the applicant, to linger the proceedings.  Howsoever, the prosecution took about six years (from 27.6.2000 to 16.10.2006), whereas the defence started giving evidence from 22.11.2006 and there is no delay on part of the defence in giving of evidence.

13. That it is duty cast upon the court to permit or bring any evidence on record, for a just decision of the case, at any stage, before delivery of judgment."

Learned A.G.A submits that this  application on the ground that  Subhash Chandra the co-accused has not challenged the order by which he was not allowed to appear in his defence.  This Criminal Misc. Application of Sri  Shyam Sunder to prove the alibi, only in order to weaken the prosecution case is abuse of the process of the Court.  In fact the accused wants to delay the proceedings for the reasons best known to him.  

An accused has a right to keep quite and allow the prosecution to prove the case.  He may or may not answer the questions put to him by the Court.  If he chooses to appear as   defence evidence, he has an opportunity to appear under section 315 Cr.P.C. as a defence witness, and in such case he will be a competent


witness.   His absence, however, to appear as a defence witness will not prejudice  him in trial in any manner.  Section 315 Cr.P.C. makes the accused a competent witness to defend himself.    His failure to appear will not be treated as a circumstance against him to prove the case.  In the present case Shyam Sunder has pleaded alibi and that his alibi  will be examined by the trial judge.   The fact that  Subhash Chandra wanted to say something in his defence and his statement was sought to be relied upon by Shyam Sunder, the other co-accused to show that the prosecution case is false, does not give Shyam Sunder a aright to challenge the order.  Section 311 Cr. P.C. give powers to the Court to summon any person as a witness or examine any person in attendance though not summoned as a witness or recalled and re-examine any person already examined to prevent failure of justice. This power may not be extended to give a right to the accused under  Section 315 Cr.P.C. to apply for examining him in defence at any stage even if he is not a material witness or  is seeking to prove the alibi of other accused.  The competence of the co-accused to appear as a defence witness under section 315 Cr.P.C. is not to be treated as a right to file application under Section 315 Cr.P.C. compelling the Court to allow him to appear as a witness if the trial court is of the opinion that the application has been made only to delay the trial.

Section 315(1) Cr.P.C. correspondent to Section 342-A, Cr.P.C. of the old code and is similar in terms except that the word "or" occurring at the end of Clause-A of the proviso to Section 342-A has been omitted. It was introduced in the Code of 1898 by the Code of Criminal Procedure (Amendment) Act of 1955.  Before this amendment accused was not allowed to enter witness box and give evidence in his defence except in cases provided under Section 240(2) (old). The accused could  be called  as a witness only on his own request in writing.  The trial judge is not obliged to explain the accused regarding his right to examine himself as a defence witness nor can he


compel him to give evidence in disproof of the charge.  The competency of one of the accused and his application to appear as a witness cannot be taken as a ground by the other co-accused for staying the trial.

The applicant before this Court did not make any application to appear as a defence witness.  He is only seeking to rely on the evidence of other co-accused to be  allowed to appear as defence witness.  The record shows that the applicant did not plead the nature of evidence which Subhash Chandra wanted to produce as a defence witness on the basis of which the Court may form an opinion that in order to arrive at a just decision  that Subhash Chandra must be examined.    The trial court did not commit any such error which may require interference of this Court, at this stage.

The Criminal Misc. Application is rejected.  

Dt. 3.7.2007.



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