Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(All) 14

IN THE HIGH COURT OF ALLAHABAD
Sanjay Kumar Pachori, J.
Bheem Singh - Applicant
Vs.
State Of U.P Through Secretary Home, Govt. U.P. Lucknow - Opposite Party
APPLICATION U/S 482 No.-22902 of 2021
Decided On : 18-01-2022

Advocates:
Advocate Appeared:
For the Appellant : Neeraj Pandey, Om Prakash Singh Sikarwar
For the Respondent: G.A.

Point of Law : 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.

Headnote:
Indian Penal Code,1860 - Section 307 - Criminal Procedure Code,1973 - Section 311 - Offence of Attempt to murder - Filed to quash the impugned order - (younger brother of the injured) against applicant, and two other known persons stating that elder brother of first informant, 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 at about 6:00 P.M. - In meantime, two motorcyclists reached there from his back side, applicant and were sitting as a pillion rider and both motorcycles were being driven by unknown persons called from back side - No sooner did brother of first informant slow down his motorcycle and turn behind on exhortation, applicant shot fire upon, who fell on ground - Whether Court is right in thinking that new evidence is needed by it? - Whether evidence sought to be led in under Section 311 is noted by Court for a just decision of a case?
Finding of the Court :
Application for recalling PW-1 has been filed after about 4 years of recording statement-in-chief of PW-1 and another application for recalling PW-5 has been filed after about one year of recording examination-in-chief of PW-5 - It has been informed by learned counsel for applicant during argument that applicant is in judicial custody - It is appropriate to mention here that PW-2 stated in his cross-examination that son was not his friend and he was resident of his village and he died after incident - Identity of said has been disclosed by PW-2 in his statement - There is no occasion to appreciate prosecution evidence in detail at this stage - Impugned order dated passed by trial court is affirmed.
Result : Present application is dismissed

JUDGMENT :

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 PW1 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-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 Annexure4, 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 PW1 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:

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SUBMISSION BEFORE THIS COURT:

7. Lea