Point of Law : To meet the ends of justice, the door cannot be shut against the accused persons without giving opportunity to cross-examine the witness only after he came to know that in another sessions trial the same witness has turned hostile.

Headnote:
Indian Penal Code,1860 - Section 147, 148, 149, 302 and 120B - Criminal Procedure Code,1973 - Section 482 and 311 – Offence of Criminal Conspiracy - Murder – Rioting,armed with deadly weapons - Applicant submits that court below without considering the materials available on record and ignoring the facts and circumstances of the case passed the impugned order dated by which application bearing Paper No. 23-Kha moved by applicant has been rejected without application of mind causing serious injustice to applicant-accused - Learned counsel for the applicant further submits that factum of hostility of witness P.W. 2 was not available when he was examined in S.T. No. hence observation of learned Court below that witness had already been crossed-examined three times could not have been ground to reject application for further cross examination on the basis of his statement being recorded - Trial court has come to the conclusion that it is not just and expedient to summon same witness again in hope of turning hostile, as such the trial court has held that application under Section 311 of Code of Criminal Procedure is not maintainable and therefore deserves to be quashed under order impugned. [Para 9]
Finding of Court : It is no doubt true that in trial case of applicant being Sessions Trial No., on three occasions, cross-examination of P.W.-2 has been done and applicant has been afforded ample opportunity to cross-examine said witness - However, when applicant came to know that same witness has been declared hostile in same case crime registered for the offence of murder of the same deceased but in different session case of co-accused being Session Trial No. 696 of 2019, prayer of the applicant to permit him to cross-examine P.W.-2 again in his trial case under Section 311 Cr.P.C. cannot be ignored in interest of substantial justice- It would be very strange that for same offence in same criminal case but in different trial cases of two criminals, on basis of different statements of same person, different views will come for both accused - It is well settled that justice should not only be done but also seen to be done - In view of above discussions and deliberations, Court opines that to meet ends of justice, door cannot be shut against the accused persons without giving opportunity to cross-examine witness only after he came to know that in another sessions trial same witness has turned hostile.
Result : Present application stands allowed.

JUDGMENT :

1. This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the order dated 29th August, 2022 passed by the Additional Sessions, Judge, Court No.15, Allahabad in Sessions Trial No. 196 of 2015 (State of U.P. Vs. Uday Yadav), arising out of Case Crime NO. 609 of 2014 under Section 302 I.P.C., Police Station Dhoomanganj, District-Prayagraj, whereby his application dated 25th August, 2022 under Section 311 Cr.P.C. praying for further cross-examination of P.W.-2 has been rejected.

2. I have heard Mr. Abhishek Kumar Yadav, learned counsel for the applicant and the learned A.G.A. for the State as well as perused the entire material available on record.

3. The relevant facts as born out from the records of the present application is as follows:

For the alleged incident occurred on 04.10.2014, first information report has been lodged by opposite party no.2 which came to be registered as Case Crime No. 609 of 2014 under section 147, 148, 149, 302 and 120B I.P.C. Police Station-Dhoomanganj, District Prayagraj on 14.10.2021. After completion of statutory investigation under Chapter XII Cr.P.C. the Police submitted charge-sheet under Section 302 I.P.C. against the applicant and co-accused Harish Chandra. On submission of the charge-sheet, the concerned Magistrate took cognizance and committed the case to the Court of Sessions, where the case was registered as Sessions Trial No. 196 of 2015 (State Vs. Harish Chandra and Another). The charges against the applicant and co-accused Harish Chandra were framed by the learned additional Sessions Judge/Special Judge (S.C./S.T.) Act, Allahabad on 10.07.2019. The charge under section 25 of Arms Act was also framed against the applicant on 10.07.2019 in S.T. No. 196 of 2015 (State Vs. Harish Chandra and Others), arising out of Case Crime No. 609 of 2014 under section 3/25 Arms Act. The Additional and District Judge Court No.2 Allahabad passed the order dated 18.10.2019 in the Session Trial No. 196 of 2015 (State of U.P. Vs. Harish Chandra and Another) to separate the file of accused Harish Chandra from the Session Trial No. 196 of 2015 and the original paper of the case was directed to be kept in the trial of the applicant Uday Yadav and considering the facts and circumstances, a direction was issued by the trial court to expedite the trial of the applicant vide orders dated 16.10.2019 and 19.08.2019. The aforesaid case was taken up on 21.10.2019 before the trial court, which passed the order dated 21.10.2019 fixing 22.10.2019 for recording the statement of prosecution witness Smt. Uma. The statement of P.W. 2 Pramod Kumar Sonkar was recorded in the case bearing S.T. No. 196 of 2015 (State Vs. Uday Yadav), on 24.10.2019 and he was cross-examined on 24.10.2019, 31.10.2019, 04.11.2019, 05.11.2019. In the examination-in-chief, in the trial of the applicant P.W.-2 has stated that the applicant and co-accused Harish Chandra fired upon the deceased by their country-made pistols, whereas in the trial of co-accused Harish Chandra being Sessions Trial No. 696 of 2019 (State vs. Harish Chandra), on 24th May, 2022, P.W.-2 has stated that he has not seen the person who fired upon the deceased Roop Chandra. When this very fact came to the knowledge of the applicant that totally contradictory statement has been given by P.W.-2 Pramod Kumar on 24.05.2022 in the S.T. No. 696 of 2019, State vs. Harish Chandra, the applicant moved an application under Section 311 Cr.P.C. on 24.08.2022 in S.T. No. 196 of 2015 (State Vs. Uday Yadav), for permitting to further cross-examine P.W. 2 Pramod Kumar with a view to elicit the truth. The said application has been rejected by the trial court under the order impugned.

4. Learned counsel for the applicant submits that the court below without considering the materials available on the record and ignoring the facts and circumstances of the case passed the impugned order dated 29.08.2022 by which the application bearing Paper No. 23-Kha m