JUDGMENT :

Heard Sri Purushottam Dixit, learned counsel for the applicants, Sri Sushil Kumar Dubey, learned counsel for the opposite party no. 2, Sri Prashant Saxena, learned A.G.A. for the State and perused the record.

2. The present 482 Cr.P.C. application has been filed to set-aside the order dated 06.05.2023 (State Vs. Chandrajit @ Chahku and others) and all proceedings arising out of Case Crime No. 94 of 1994 u/s 147, 148, 149, 302, 395, 396, 504 I.P.C., Police Station-Basrehar, District-Etawah as a Special Case No. 265 of 2008, pending in the court of learned Special Judge (Dacoity Affected Areas Act)/Additional Sessions Judge, Court No. 5, Etawah and witnesses V.P. Singh (Retired) S.I., R/o Phoolbagh Colony, Police Station-Nauchandi, Shahar and District-Meerut (Investigating Officer), Ghanshyam Ahirwar, Inspector (Investigating Officer C.B.C.I.D.) and Dr. S.K. Agarwal, Medical Officer, Witness (Postmortem), may be recalled for their cross-examination.

3. It has been submitted by the learned counsel for the applicant that vide impugned order dated 06.05.2023, the trial court rejected the application 354 Ka dated 26.04.2023 u/s 311 Cr.P.C. filed by the applicants/accused. The applicants/accused have filed their application u/s 311 Cr.P.C. with the averment that in the beginning, charge was framed against the accused u/s 302 & 395 I.P.C. and prosecution witnesses were examined after framing of the charge in aforesaid sections. The second charge was framed on 13.10.2010 u/s 396 I.P.C. After framing of the altered charge u/s 396 I.P.C., on 14.02.2023, P.W.1 Rajesh and P.W.3 Vijay Kumar were cross-examined.

4. It has been next submitted by the learned counsel for the applicant that after alteration of charge, the informant had filed Criminal Revision No. 4882 of 2010, Rajesh Kumar Singh Vs. State of U.P. & Others. Vide order dated 18.11.2010, the trial of the said criminal case was stayed by the Hon’ble High Court. The stay order was vacated in the year 2023. Thereafter, P.W.1 Rajesh Kumar and P.W.2 Vijay Kumar were examined. Thus, there was no act on the part of the accused in delaying the trial of the case. Thus, the defence did not contribute for the delay caused in the trial of the case. It has also been submitted that to contradict these witnesses u/s 145 of the Indian Evidence Act, the re-examination of P.W.2 Dr. S.K. Agarwal, P.W.4 S.I. V.P. Singh and Investigating Officer of C.B.C.I.D., Ghanshyam Ahirwar is essential. By not summoning the aforesaid witnesses, the trial court has caused great injustice to the accused and thus, the impugned order may be quashed and trial court be directed to summon the aforesaid witnesses.

5. Per contra, learned counsel for the opposite party no. 2 and learned A.G.A. for the State have opposed this application u/s 482 Cr.P.C. on the ground that the applicants/accused have delayed the trial of the case by submitting various applications. It has been next submitted that on the application of the defence, the charge framed u/s 302 & 395 I.P.C. was converted to Section 396 I.P.C. on 13.10.2010. Thereafter, on the application of defence, vide order dated 20.10.2010, the court summoned P.W.1 Rajesh Kumar and P.W.3 Vijay Kumar for cross-examination. It has also been submitted that Ghanshyam Ahirwar, Investigating Officer of C.B.C.I.D. was not earlier summoned during trial. The defence has earlier filed application for summoning P.W.1 Rajesh Kumar and P.W.3 Vijay Kumar for re-examination which was rejected by the trial court vide order dated 18.02.2008 and the case was fixed for argument. It has further been submitted that P.W.2 Dr. S.K. Agarwal, who has prepared the postmortem report, was thoroughly examined by the defence on all points. Therefore, there was no justification in the prayer of defence for summoning the witnesses for cross-examination.

6. In support of his arguments, learned counsel for the applicants has relied on the following rulings :-

(i) Manju Devi Vs. State of Rajasthan and other