# Bheem Singh v. State of U.P

- **Citation:** (2022) 2 ILRA 577
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-18
- **Case number:** Application U/S 482 Cr.P.C. No.22902 of 2021
- **Bench:** Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bheem-singh-v-state-of-u-p-48138
- **Pages:** 10

## Headnote

(A) Criminal Law-Application for recalling
witnesses-filed after delay of 4 years and
1 years after recording of examination in
chief
of
respective
witnesses-Trial
pending
for
defence
evidence
and
Applicant is in jail-Trial court rejecting
application u/s 311 Cr.P.C. affirmed. (E-9)

List of Cases cited:-

## Text

2 All. Bheem Singh Vs. State of U.P.
577
Indian Evidence Act and Sub Clause (c)
thereof and says that secondary evidence
may be given of the existence, condition or
contents of a document only when the
original has been destroyed or lost or when
the party offering evidence of its contents
cannot, for any other reason not arising
from his own default or neglect, produce it
in reasonable time.

20. It has been submitted that the
original statement under Section 164
Cr.P.C. of the victim was not produced by
the prosecution and no reason for the same
was also given, therefore, the photocopy of
the 164 Cr.P.C. could not be treated as
Secondary Evidence and could not be made
admissible by the learned Trial Court. The
argument
regarding
admissibility
or
otherwise of statement under Section 164
Cr.P.C. of the victim can only be
considered at the time when the trial has
concluded and while considering evidence,
the Trial Court gives a finding that the
witness/victim
has
resiled
from
her
statement under Section 164 Cr.P.C. only
then its original would be required to verify
the contents thereof and to compare the
same
with
the
statement
made
in
Examination-in-Chief and the admission if
any made in the examination of such a
victim. Hence this argument is also rejected
as misconceived.

21. Having considered the arguments
made by the learned counsel for the
petitioner and learned AGA for the State
and also the evidentiary value of a
statement the Section 164 Cr.P.C., this
Court finds no good ground to show
interference in the order impugned dated
08.12.2021.

22. This Court finds from the perusal
of the order that the learned trial court has
recorded that the prosecution witness-04
(i.e. the victim) had been summoned and
was returned twice and she lived out of
station and a last opportunity had already
been given for cross-examination which
was not availed of by the accused. Such an
order cannot be said to be an unreasoned
order as argued by the learned counsel for
the petitioner.

23. Accordingly, this petition stands
rejected.
----------
(2022)02ILR A577
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2022 &
20.01.2022

BEFORE

THE HON'BLE SANJAY KUMAR PACHORI, J.

Application U/S 482 Cr.P.C. No.22902 of 2021

Bheem Singh ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Neeraj Pandey, Sri Om Prakash Singh
Sikarwar

Counsel for the Opposite Party:
A.G.A.

(A) Criminal Law-Application for recalling
witnesses-filed after delay of 4 years and
1 years after recording of examination in
chief
of
respective
witnesses-Trial
pending
for
defence
evidence
and
Applicant is in jail-Trial court rejecting
application u/s 311 Cr.P.C. affirmed. (E-9)

List of Cases cited:-

1. The State represented by the Deputy
Superintendent of Police Vs Tr. N. Seenivasagan,
2021 SCC Online SC 212
578 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Natasa Singh Vs C. B. I., (2013) 5 SCC 741

3. Rajaram Prasad Yadav Vs St. of Bih., (2013)
14 SCC 461, the Supreme Court held as under:
(SCC, p. 473-74, para 17)

4. Jamatraj Kewalji Govani Vs The St. of Mah.,
AIR 1978 SC 178 (3 Judge Bench)

5. Ram Jeet & 8 ors. Vs St. of U.P., AIR 1958 All
439) 25.

6.
State
represented
by
the
Deputy
Superintendent of Police Vs Tr. N. Seenivasagan
(Delivered by Hon'ble Sanjay Kumar
Pachori, J.)

1. The instant application under
Section 482 of the Code of Criminal
Procedure (in short "the Code") has been
filed to quash the impugned order dated
7.10.2021 passed by Additional Sessions
Judge Court No. 4, Deoria, in the Sessions
Trial No. 40 of 2017 (State v. Bheem Singh
and Another) arising out of Case Crime No.
458 of 2015 under Section 307 of Indian
Penal Code (hereinafter referred as "IPC"),
registered at Police Station - Lar, District
Deoria by which two applications filed by
the applicant/accused under Section 311 of
the Code have been rejected by a common
order dated 7.10.2021.

BRIEF
FACTS
OF
THE
CASE:

2. The prosecution case, in brief, is
that the First Information Report (in short
"FIR") dated 25.8.2015 has been lodged by
PW-1 Vinod Singh (younger brother of the
injured) against the applicant, Subhash
Singh, and two other known persons stating
that on 23.8.2015, elder brother of the first
informant, Balindera Singh went to the
market 'Lar' for some personal work by his
motorcycle. After finishing his work, he
was returning to his home and reached 400
meters from Dhamauli Tiraha at about 6:00
P.M. In the meantime, two motorcyclists
reached there from his back side, the
applicant and Subhash Singh were sitting
as a pillion rider and both the motorcycles
were being driven by unknown persons.
Subhash Singh called Balindera Singh from
the back side. No sooner did the brother of
the
first
informant
slow
down
his
motorcycle and turn behind on exhortation
of Subhash Singh, the applicant shot fire
upon Balindera Singh, who fell on the
ground. At the time of the incident,
Dhirendra Singh was roaming in his field
situated some distance from the spot and
Girjesh Singh was attending his natural call
at that time. On hearing the gunshot, both
rushed to the spot and the accused persons
fled away from the spot rolling firearms in
the air to Bhagalpur. The incident has taken
place due to old enmity. The informant
took the injured firstly to Government
Hospital, Lar and then to District Hospital
Deoria. Treatment of his brother is going
on in Trauma Centre, Medical College
Lucknow. When the condition of Balindera
Singh improved to some extent, he told him
about the incident.

3. The FIR of the present incident has
been lodged by the PW-1 Vinod Singh at
Police Station- Lar District Deoria on
25.8.2015 at 16:30 hours under Section 307
of IPC against the applicant, Subhash
Singh, and two unknown persons after
about 46 hours of the incident on the basis
of Tahrir dated 25.8.2015 which are
Annexure-2
and
Annexure-3
to
the
affidavit.

4. The applicant has filed the
statements of PW - 1 Vinod Singh
(informant),
PW-
2
Balindera
Singh
(injured), PW- 3 Dhirendra Singh (as eye-
2 All. Bheem Singh Vs. State of U.P.
579
witness), and PW-5 Dr. Rajesh Yadav, who
had conducted the medical examination of
the injured on 23.8.2015 at 8:10 P.M. at
District Hospital Deoria as Annexure- 4, 5,
6, and 7 to the affidavit. The applicant has
also filed the medical examination report
dated 23.8.2015 as Annexure-1 and two
applications which have been filed under
Section 311 of the Code as Annexure- 9
and 10 to the affidavit.

5. As per the medical report of the
injured Balindera Singh (age about 50
years), he has received injury no. 1 entry
wound of firearm size 1 cm. x 1 cm. right
side chest wall at the back region, 22 cm.
below to right side top of the shoulder, 10
cm. from the middle part of the body,
margin are inverted, blackening and blood
oozing is present and injury no. 2 exit
wound of firearm size 1 cm. x 1cm.
situated at the middle part of the chest, 10
cm. from the right nipple and 21 cm. left
nipple and margins are everted.

6. Two applications have been filed
by the applicant under Section 311 of the
Code on 4.10.2021 with a prayer to recall
PW- 1 Vinod Singh and PW- 5 Dr. Rajesh
Yadav for further cross-examination to ask
5 specific questions in the statement of
PW-1 and four specific question in the
statement of PW-5, which are as under:

"यह लक वादी मुकदमा (पी०डब्लू०-1)
से,
उसकी
पुनैः
प्रलतपिीक्षा
(re
cross
examination) में लनम्नललस्खत प्रश् पूछा जाना
न्यायलहत में आवश्यक है-

(i) अपनी मुख्य पिीक्षा में, औि
प्रलतपिीक्षा लदनाींलकत 10.10.2017 में, आपने
अपने लजस दोस्त 'सुिेश लसींह' से िोडवेज बस
स्ट्ेशन, लाि पि दिख्वास्त ललखवाने वाली बात
कही है उस सुिेश लसींह के लपता का नाम क्ा है,
वह कहााँ का लनवासी है, उसकी शैलक्षक योग्यता
क्ा है औि उसकी आजीलवका का स्रोत क्ा है ?

(ii) आपके उक्त दोस्त सुिेश लसींह से
आपकी दोस्ती कब, कहााँ औि कैसे हुई ?

(iii) आपके उक्त दोस्त सुिेश लसींह के
परिवाि के लकस सदस्/लकन सदस्ोीं को आप
जानते एवीं पहचानते हैं ?

(iv) आपके उक्त दोस्त सुिेश लसींह
इस समय जीलवत है या नहीीं ?

(v) यलद इस समय आपका उक्त दोस्त
सुिेश लसींह जीलवत नहीीं है तो उसकी मृत्यु लकस
लतलि को हुई ?

यह लक डॉ० िाजेश यादव (पी०डब्लू०5) को माननीय न्यायालय में प्रलतपिीक्षा हेतु पुनैः
आहत किना न्यायलहत में आवश्यक है लजससे
उनसे लनम्नाींलकत प्रश् पूछे जा सकें-

(I) कोई मिीज "Oriented" है या
"Disoriented", यह जानने के ललए डाक्टि क्ा
तिीका अपनाते है ?

(ii)
आपने
चोलटल/बलेन्द्र
लसींह/पी०डब्लू०-2
के
"Orientation"
का
मूल्याींकन कैसे लकया िा ?

(iii) आपने बलेन्द्र लसींह/ पी०डब्लू०-2
की injury report (प्रदशट क-3) में उसे
"Oriented" अींलकत/दलशटत किने के पूवट उससे
क्ा बात-चीत की िी औि उसने आपसे क्ा कहा
िा ?

(iv) आपने अपने साक्ष्य में यह कहा
है लक मिीज पूिी तिह होश में िा औि लोगोीं को
580 INDIAN LAW REPORTS ALLAHABAD SERIES
पहचान िहा िा, आपने यह लकस आिाि पि
कहा है ?

SUBMISSION BEFORE THIS
COURT:

7. Learned counsel for the applicant
submits that according to the statement of
PW- 1 Vinod Singh, he got his Tahrir of
the present case written by his friend
Suresh Singh at the Bus Station Lar, Deoria
on 25.08.2015. In earlier cross-examination
of PW-1, the question with regard to the
identity of said Suresh Singh had not been
asked. PW-2 Balindera Singh stated that
Suresh Singh, son of Rama Shankar,
resident of village Ajna was alive at the
time of the incident and he had not written
his report. But Suresh Singh son of Rama
Shankar resident of village Ajna was not
alive on 25.8.2015 because he had died on
1.9.2014 before the incident. If the alleged
Suresh Singh died about one year before
the incident, the very genesis of the
prosecution case would be proved false.

8. Learned counsel further submits
that the family member of the applicant did
not know about the date of the death of
Suresh Singh. After examination of PW-2,
it was revealed that Suresh Singh has died
on 1.9.2014. Due to these reasons,
questions regarding the identity of the said
Suresh Singh had not been asked during
earlier cross-examination of PW-1 are
essential to the just decision of the case.

9. It is further submitted that PW-5 Dr.
Rajesh Yadav, who conducted the medical
examination on 23.8.2015 indicates that the
injured was "oriented" but in his evidence,
he stated that the injured was conscious and
was recognizing people but unable to speak
which is contrary to the medical report.

10. He further contended that there is
contradiction and ambiguity between the
medical report of the injured, wherein it has
been mentioned that at the time of medical
examination injured was "oriented" and in
the cross-examination of PW-5 Dr. Rajesh
Yadav
stated
that
the
injured
was
conscious. Questions had not been asked in
earlier cross-examination to the PW-5 Dr.
Rajesh
Yadav
with
regard
to
the
consciousness of the injured which are also
essential to the just decision of the case.
Learned counsel for the applicant relied
upon the judgment of the Supreme Court of
case The State represented by the
Deputy Superintendent of Police v. Tr.
N. Seenivasagan, 2021 SCC Online SC
212.

11. Learned A.G.A. has supported the
impugned order and vehemently opposed
the prayer of the applicant and submitted
that PW-1 Vinod Kumar Singh is not an
eye-witness of the incident. The FIR of the
present case has been lodged by PW-1
Vinod Kumar Singh after about 46 hours of
the incident on the basis of information
received from the injured. The application
for recalling PW-1 has been filed after
about 4 years of recording the statement-inchief of PW-1 Vinod Kumar Singh and
another application for recalling PW-5 Dr.
Rajesh Yadav has been filed after about
one year of recording the examination-inchief of PW-5. Both the applications have
been filed when the case was fixed in
defence evidence.

12. He further submits that as per the
police report of the present case Suresh
Singh was not a scribe of the Tahrir of the
complaint and was not an eye-witness of
the incident. PW-2 Balindera Singh has
disclosed the identity of said Suresh Singh
in his cross-examination that he was
2 All. Bheem Singh Vs. State of U.P.
581
resident of his village and was not posted in
police department at Balia. He has died
after the incident. It is not true that the
identity of Suresh Singh has not been
disclosed. The evidence of PW-1 Vinod
Kumar Singh has been recorded on
5.9.2017,
21.9.2017,
10.10.2017,
and
27.10.2017
and
elaborate
crossexamination has been done. It has been
disputed that Suresh Singh has died before
the incident, the applicant can lead oral or
documentary evidence in defence.

13. Learned A.G.A. further contended
that the applications have been filed after 8
dates
from
closing
the
prosecution
evidence. There is the direction of the Apex
Court to conclude the trial expeditiously. If
any material contradiction or ambiguity is
found in the prosecution evidence, the
applicant would be entitled to the benefit of
the doubt. The applications for recalling
PW-1 and PW-5 are not bona fide, the
reasons assigned are also not satisfactory
and have been filed after a long delay.

14. Heard, Sri Om Prakash Singh
Sikarwar, learned counsel for the applicant,
Sri Manoj Kumar Dwivedi, learned A.G.A
for the State and perused the materials on
record.

DISCUSSION:

15. The trial court by its order dated
7.10.2021 dismissed the applications for
recalling the witnesses for further crossexamination and rejected the submission
urged on behalf of the applicant on the
ground that the defence has elaborately
cross-examined PW-1 and PW-5. The
applicant has ample opportunity to lead
oral or documentary evidence in defence.
The applicant can also make an argument
on this point. If there is any contradiction
or ambiguity in the prosecution evidence. It
is a settled position of law that the accused
would be entitled to benefit of the doubt.

16. The order of the trial court has
been assailed on two grounds, firstly; after
reading the evidence of PW-1 and PW-2
the identity of scribe Suresh Singh is not
clear. Secondly; if the complaint has been
written by Suresh Singh, son of Rama
Shankar, who died about one year before
the incident, in that case, the genesis of the
prosecution case would be proved false.

17. Before I proceed to examine the
weight of the submissions made by learned
counsel for both parties, it would be useful
to notice the law with regard to the scope of
Section 311 of the Code.

18. Section 311 is manifestly in two
parts, the first part of the Section has given
discretion to the Court and enables it any
stage of an inquiry, trial, or other
proceedings under the Code, (a) to summon
anyone as a witness, or (b) to examine any
person in the Court, or (c) to recall and reexamine any person whose evidence has
already been recorded; on the other hand,
the second part of the Section is mandatory
and imposes an obligation on the Court, to
do one of aforesaid three things if the new
evidence appears to it essential to the just
decision of the case. In order to appreciate
the submission of the applicant it will be
worthwhile to refer to Section 311 of the
Code, which reads as under:

"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
582 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

19. In this backdrop, it would be
useful to make a reference to certain
decisions rendered by the Supreme Court
on the interpretation of Section 311 of the
Code, wherein the Apex Court highlighted
the basic principles which are to be borne
in mind while dealing with an application
under Section 311 of the Code.

20. In Natasa Singh v. C. B. I.,
(2013) 5 SCC 741, the Apex Court, after
referring the various decisions of the
Supreme Court, has observed and held as
under: (SCC, p. 748-49, para 15,16)

"15. The scope and object of the
provision is to enable the Court to
determine the truth and to render a just
decision after discovering all relevant facts
and obtaining proper proof of such facts, to
arrive at a just decision of the case. Power
must be exercised judiciously and not
capriciously
or
arbitrarily,
as
any
improper or capricious exercise of such
power may lead to undesirable results. An
application under Section 311 of Cr.P.C.
must not be allowed only to fill up a lacuna
in the case of the prosecution, or of the
defence, or to the disadvantage of the
accused, or to cause serious prejudice to
the defence of the accused, or to give an
unfair advantage to the opposite party.
Further, the additional evidence must not
be received as a disguise for retrial, or to
change the nature of the case against either
of the parties. Such a power must be
exercised, provided that the evidence that is
likely to be tendered by a witness, is
germane
to
the
issue
involved.
An
opportunity of rebuttal however, must be
given to the other party. The power
conferred under Section 311 Cr.P.C. must
therefore, be invoked by the Court only in
order to meet the ends of justice, for strong
and valid reasons, and the same must be
exercised
with
great
caution
and
circumspection. The very use of words such
as 'any Court', 'at any stage', or 'or any
enquiry, trial or other proceedings', 'any
person' and 'any such person' clearly spells
out that the provisions of this section have
been expressed in the widest possible
terms, and do not limit the discretion of the
Court in any way. There is thus no escape
if the fresh evidence to be obtained is
essential to the just decision of the case.
The determinative factor should therefore
be, whether the summoning/recalling of the
said witness is in fact, essential to the just
decision of the case.

16. Fair trial is the main object of
criminal procedure, and it is the duty of the
court to ensure that such fairness is not
hampered or threatened in any manner.
Fair trial entails the interest of the
accused, the victim and of the society, and
therefore, fair trial includes the grant of
fair and proper opportunities to the person
concerned, and the same must be ensured
as this is a constitutional, as well as a
human right. Thus, under no circumstances
can a person's right to fair trial be
jeopardised. Adducing evidence in support
of the defence is a valuable right. Denial of
such right would amount to the denial of a
fair trial. Thus, it is essential that the rules
of procedure that have been designed to
ensure justice are scrupulously followed,
and the court must be zealous in ensuring
that there is no breach of the same." (Vide:
Talab
Haji
Hussain
v.
Madhukar
Purshottam Mondkar & Anr.1, Zahira
2 All. Bheem Singh Vs. State of U.P.
583
Habibulla H. Sheikh & Anr. v. State of
Gujarat & Ors.2, Zahira Habibullah &
Anr. v. State of Gujarat & Ors.3, Kalyani
Baskar (Mrs.) v. M. S. Sampoornam
(Mrs.)4, Vijay Kumar v. State of U.P. &
Anr.5, and Sudevanand v. State through
C.B.I.6)

21. In Rajaram Prasad Yadav v.
State of Bihar, (2013) 14 SCC 461, the
Supreme Court held as under: (SCC, p.
473-74, para 17)

"17.
From
a
conspectus
consideration of the above decisions, while
dealing with an application under Section
311 Cr.P.C. read along with Section 138 of
the Evidence Act, we feel the following
principles will have to be borne in mind by
the Courts:

17.1. Whether the Court is right
in thinking that the new evidence is needed
by it? Whether the evidence sought to be
led in under Section 311 is noted by the
Court for a just decision of a case?

17.2. The exercise of the widest
discretionary power under Section 311 Cr.
PC. should ensure that the judgment should
not be rendered on inchoate, inconclusive
and speculative presentation of facts, as
thereby the ends of justice would be
defeated.

17.3. If evidence of any witness
appears to the Court to be essential to the
just decision of the case, it is the power of
the Court to summon and examine or recall
and re-examine any such person.

17.4. The exercise of power under
Section 311 Cr.PC. should be resorted to
only with the object of finding out the truth
or obtaining proper proof for such facts,
which will lead to a just and correct
decision of the case.

17.5. The exercise of the said
power cannot be dubbed as filling in a
lacuna in a prosecution case, unless the
facts and circumstances of the case make it
apparent that the exercise of power by the
Court would result in causing serious
prejudice to the accused, resulting in
miscarriage of justice.

17.6. The wide discretionary
power should be exercised judiciously and
not arbitrarily.

17.7. The Court must satisfy itself
that it was in every respect essential to
examine such a witness or to recall him for
further examination in order to arrive at a
just decision of the case.

17.8. The object of Section 311
Cr. PC. simultaneously imposes a duty on
the Court to determine the truth and to
render a just decision.

17.9. The Court arrives at the
conclusion that additional evidence is
necessary, not because it would be
impossible to pronounce the judgment
without it, but because there would be a
failure of justice without such evidence
being considered.

17.10. Exigency of the situation,
fair play and good sense should be the
safeguard, while exercising the discretion.
The Court should bear in mind that no
party in a trial can be foreclosed from
correcting errors and that if proper
evidence was not adduced or a relevant
material was not brought on record due to
any inadvertence, the Court should be
584 INDIAN LAW REPORTS ALLAHABAD SERIES
magnanimous in permitting such mistakes
to be rectified.

17.11. The Court should be
conscious of the position that after all the
trial is basically for the prisoners and the
Court should afford an opportunity to them
in the fairest manner possible. In that
parity of reasoning, it would be safe to err
in favour of the accused getting an
opportunity rather than protecting the
prosecution against possible prejudice at
the cost of the accused. The Court should
bear in mind that improper or capricious
exercise of such a discretionary power,
may lead to undesirable results.

17.12. The additional evidence
must not be received as a disguise or to
change the nature of the case against any
of the party.

17.13. The power must be
exercised keeping in mind that the
evidence that is likely to be tendered,
would be germane to the issue involved
and also ensure that an opportunity of
rebuttal is given to the other party.

17.14. The power under Section
311 Cr.PC. must therefore, be invoked by
the Court only in order to meet the ends
of justice for strong and valid reasons
and the same must be exercised with
care, caution and circumspection. The
Court should bear in mind that fair trial
entails the interest of the accused, the
victim and the society and, therefore, the
grant of fair and proper opportunities to
the persons concerned, must be ensured
being a constitutional goal, as well as a
human right."

22. In Swapan Kumar Chattarjee
v CBI, (2019) 14 SCC 328, the Supreme
Court observed as under: (SCC p. 331,
para 11 & 12)

"11. It is well settled that the
power conferred under Section 311
should be invoked by the court only to
meet the ends of justice. The power is to
be exercised only for strong and valid
reasons and it should be exercised with
great caution and circumspection. The
court has wide power under this section
to
even
recall
witnesses
for
reexamination
or
further
examination,
necessary in the interest of justice, but
the same has to be exercised after taking
into
consideration
the
facts
and
circumstances of each case. The power
under
this
provision
shall
not
be
exercised if the court is of the view that
the application has been filed as an abuse
of the process of law.

12.
Where
the
prosecution
evidence has been closed long back and the
reasons for non-examination of the witness
earlier are not satisfactory, the summoning
of the witness at belated stage would cause
great prejudice to the accused and should
not be allowed. Similarly, the court should
not encourage the filing of successive
applications for recall of a witness under
this provision."

23. Section 311 of the Code gives a
wide power to the court to summon a
material witness or to examine a person
present in court or to recall a witness
already examined. It confers a wide
discretion on the court to act as the
exigencies of justice require. The word
"just" cautions the court against taking any
action which may result injustice either to
the accused or to the prosecution. Where
the court exercise the power under the
second part, the inquiry cannot be as to
2 All. Bheem Singh Vs. State of U.P.
585
whether the accused has brought anything
suddenly or unexpectedly but whether the
court is right in thinking that the new
evidence is needed by it for a just decision
of the case. If the court has acted without
the requirements of a just decision, the
action is open to criticism but if the court's
action is supportable as being in aid of a
just decision the action cannot be regarded
as exceeding the jurisdiction. [Vide:
Jamatraj Kewalji Govani v. The State of
Maharashtra, AIR 1978 SC 178 (3 Judge
Bench)].

24. The discretion given by the first
part is very wide and its very width
requires a corresponding caution on the
part of the court. But the second part does
not allow any discretion; it binds the court
to examine fresh evidence and the only
condition prescribed is that this evidence
must be essential to the just decision of the
case. Whether the new evidence is essential
or not must of course depend on the facts of
each case and has to be determined by the
presiding Judge. (Vide: Ram Jeet and 8
others v. State of U.P., AIR 1958 All 439)

25. In the case of The State
represented
by
the
Deputy
Superintendent of Police v. Tr. N.
Seenivasagan, in this case, the prosecution
had sought to produce a copy of the
Approval order granted the authority on
record and had it marked as an exhibit in
the evidence, for which purpose witnesses
were sought to be recalled. In its
applications, the prosecution noted that the
witnesses were required to mark the
relevant document, which was crucial for
the decision of the case. It was submitted
that Exhibit. P-1 the order of sanction itself
shows that the order was issued by the
Board and at the time of filing the charge
sheet the Investigation Officer had obtained
the Approval Order of the Board but not
submitted it before the court. With great
respect to the judgment of the Apex Court,
which does not help the applicant in the
present case, because the documentary
evidence had been obtained at the time of
filing of charge sheet which had not been
filed before the court.

26. Keeping in mind the position of
law, now I revert back to the facts of the
present case. It is admitted case that PW-1
Vinod Kumar Singh is not an eye-witness
of the incident; the FIR has been lodged by
PW-1 after about 46 hours of the incident
on the basis of information received from
the injured PW-2 Balindera Singh; the
name of said Suresh Singh has not been
mentioned in the Tahrir of the present case.

27. The application for recalling PW1 has been filed after about 4 years of
recording the statement-in-chief of the PW1 Vinod Kumar Singh and another
application for recalling PW-5 Dr. Rajesh
Yadav has been filed after about one year
of recording the examination-in-chief of
PW-5. It has been informed by the learned
counsel for the applicant during the
argument that the applicant is in judicial
custody. It is appropriate to mention here
that PW-2 Balindera Singh stated in his
cross-examination that Suresh Singh son of
Rama Shankar was not his friend and he
was resident of his village and he died after
the incident. The identity of said Suresh
Singh has been disclosed by PW-2 in his
statement.
There
is
no
occasion
to
appreciate the prosecution evidence in
detail at this stage.

28. In view of the facts and
circumstances and keeping in mind the
position of law I am of the considered
opinion that learned trial judge gave well-
586 INDIAN LAW REPORTS ALLAHABAD SERIES
founded
reasons
for
rejecting
the
applications. Therefore, the order dated
7.10.2021 passed by the learned trial court
is liable to be affirmed for the following
reasons:

(i) The applications for recalling
the witnesses PW-1 and PW-5 have been
filed after a long delay of 4 years, 1 year
after recording the chief-examination of
PW-1 and PW-5 respectively, and the
reasons
assigned
therein
are
unsatisfactory.

(ii) The trial of the present case is
pending since 2015 and the applicant is in
judicial custody and the trial is pending for
defence evidence.

(iii) The identity of scribe Suresh
Singh has been disclosed by PW-2 Suresh
Singh and he was not an eye-witness.

(iv)
The
applicant
has
an
opportunity to produce oral or documentary
evidence with regard to the fact that Suresh
Singh has died before/or after the incident.

(v) The FIR has been lodged
about 46 hours after the incident on the
basis of information received from the
injured PW-2 Balindera Singh.

(vi) According to PW-1 Vinod
Kumar Singh, Suresh Singh was scribe of
the complaint (Tahrir). However, this fact
has not been disclosed in the Tahrir.

29. For the aforesaid reasons,
impugned order dated 7.10.2021 passed by
the trial court is affirmed. Accordingly, the
present application is dismissed along with
the applications filed by the applicant under
Section 311 of the Code.
30. Before parting with the judgment,
it is made clear that the observations made
in this judgment are limited to the purpose
of determination of this application and
will in no way be construed as an
expression on the merits of the case. The
trial court will adjudicate the matter on its
own merits uninfluenced by any of the
observations made therein.

The present case has been delivered on
18.01.2022 inadvertently date on which
case was reserved the case is wrongly typed
as 17.11.2022 instead the same should be
17.11.2021, therefore, to rectify the said
mistake, file of the said case has been
summoned from the office suo-moto and
the same is rectified by me by order dated
20.01.2021 deleting the date on which case
was reserved as 17.11.2022 and in place of
it substitute the date on which case was
reserved as 17.11.2021.

This order shall also be treated as a
part of the judgment already passed in the
present application.
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(2022)02ILR A586
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.12.2021

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 Cr.P.C. No.27519 of 2007

Karmraj Singh & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Anurag Pathak

Counsel for the Opposite Parties:
A.G.A.,Sri Sumit Daga