The essentiality of evidence for a just decision of the case should be the primary factor in deciding the application under Section 311 Cr.P.C.

JUDGMENT :

AJAI TYAGI,J.

1. This application u/s 482 Cr.P.C. is moved by applicant Rajendra Kumar against the State of U.P. being aggrieved with the order passed by Additional District and Sessions Judge, Court No.1, Ghaziabad on 02.08.2022 in S.T. No.1512 of 2005 (State vs. Manmohan and others), under Section 302 IPC, Police Station-Kotwali, District-Ghaziabad, whereby the application, moved by applicant-accused Rajendra Kumar, under Section 311 of Cr.P.C. for recalling PW1 Shiv Kumar Sharma was rejected by aforesaid trial court.

2. Heard Shri Sant Saran, Advocate appearing on behalf of Ms. Samriddhi Upadhyaya, assisted by Shri Yash Dev Upadhyaya, learned counsel for the applicant and Shri Mithilesh Kumar, Learned AGA for the State.

3. Brief facts of the case giving rise to this present application are that a first information report was lodged by Shiv Kumar Sharma against Manmohan @ Bittu, Rajendra @ Pappu and Satpal @ Santo u/s 302 r/w Section 34 IPC on 05.05.2005, in which averment was made that complainant Shiv Kumar had lent his shop to Ranjeet. Manmohan, brother of Surendra Bhola, had told him to get the shop vacated. Due to this cause persons became inimical and told him that he was with their enemies. On 5.5.2005, all the three accused with one more person came to his house to see his ailing father and after that at about 8:15 pm when they were returning, he and his brother Ashok @ Billu and Arjun Sharma went to see off them. When they reached on the road, all the three named accused with one more person dragged their country made pistols and fired at them with intention to kill. In this occurrence, the brother of complainant Ashok @ Billu sustained serious injuries and was declared dead in hospital. The scribe of the aforesaid FIR was Arjun Sharma.

4. Investigation was carried out and charge sheet was submitted by I.O. against the accused persons. Learned trial court framed charge under Section 302 r/w Section 34 IPC against all the accused persons. During trial, complainant Shiv Kumar Sharma was examined as PW1 and scribe of FIR Arjun Sharma was examined as PW2. Prosecution examined only two witnesses, namely, PW1 and PW2 as witnesses of fact and six other formal witnesses were examined. After completion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C. Accused persons were given opportunity for their defence.

5. After that an application u/s 311 Cr.P.C. was moved on behalf of the accused Rajendra Kumar for recalling PW1 Shiv Kumar Sharma for further cross-examination. The aforesaid application under Section 311 Cr.P.C. was rejected by learned trial court vide impugned order dated 2.8.2022. Aggrieved with impugned order, applicant-accused Rajendra Kumar moved this application u/s 482 of Cr.P.C.

6. Learned counsel for the applicant submitted that learned trial court has rejected the application without application of judicial mind only on two grounds, firstly, that cross-examination of PW1 has already been done on behalf of the accused persons and secondly, that the sessions trial is very old and pending since the year 2005 and one of the oldest matter of the court. Learned counsel for the applicant submitted that application should not have been rejected on the ground that the case is very old because on this ground justice should not be buried. Learned counsel for the applicant relied on the decision of Apex Court in Criminal Appeal N0.1021 of 2022 Varsha Garg Vs. State of Madhya Pradesh and others In SLP (Crl) No.2239 of 2022. Learned counsel for the applicant further submitted that in the aforesaid Sessions trial complainant Shiv Kumar Sharma has been examined as PW1 and scribe of FIR Arjun Sharma as PW2. In his examination-in-chief PW2 Arjun Sharma supported the prosecution case but in his cross-examination he has totally retracted from his statement in examination-in-chief and has denied of being eye-witness in cross-examination by saying that he had not seen the occurrence