Court No. - 50 Case :- CRIMINAL REVISION No. - 2631 of 2010 Petitioner :- Vipin Kumar Dubey Respondent :- State Of U.P. Petitioner Counsel :- Rajiv Gupta,Dileep Kumar,Rajrshi Gupta Respondent Counsel :- Govt. Advocate Hon'ble Ashok Kumar Roopanwal,J.
This criminal revision has been filed against the order dated 22.6.2010 passed
by the F.T.C. No. 4, Kanpur Nagar, in S. T. No. 467 of 2004, State Vs. Vipin
Dubey, whereby application 43 Kha moved by the revisionist for recalling
PW6 Kamlesh Katiyar and PW11 Devendra Singh was rejected.
Heard Mr. Dileep Kumar, learned counsel for the revisionist, learned AGA
for the State and perused the record.
I proceed to dispose of this revision finally as both the parties agree for the
decision of the revision and none wants to file counter and rejoinder
affidavits.
It appears from the record that two cases were instituted against the
revisionist, one was S. T. No. 467 of 2004, u/s 302 I.P.C. and the other was S.
T. No. 1640 of 2008 u/s 25 Arms Act. In the Sessions Trial concerning
murder, statements of 11 witnesses were recorded. At that time the case under
the Arms Act was not before the Sessions Court. When this murder case was
fixed for arguments an application was moved for summoning the case u/s 25
Arms Act and be decided by the same court with the case u/s 302 I.P.C. That
application was allowed. Later on a charge u/s 25 Arms Act was framed
against the revisionist. This case also came at the stage of defence. At that
stage an application 43 Kha was moved by the revisionist with the prayer that
PW6 Kamlesh Katiyar and PW11 Devendra Singh, who were examined in the
murder case, be recalled for cross-examination. This application was rejected
by saying that these witnesses had already been examined at length and the
revisionist had not specified as to what questions were proposed to be put to
these witnesses.
It has been argued by Mr. Kumar that in the murder case the evidence of
discovery of weapon of assault u/s 27 Arms Act was also led by the
prosecution. In order to controvert the very discovery, it was necessary to
cross-examine the witnesses of discovery. As PW6 Kamlesh Katiyar and
PW11 Devendra Singh were the witnesses of discovery, they were required to
be cross-examined. However, It was admitted by Mr. Kumar before me that
PW6 Kamlesh Katiyar was not produced by the prosecution in the case u/s 25
Arms Act. PW-11, Devendra Singh was, however, produced.
Seeing that the discovery of the weapon of assault was also a part of the
evidence of the prosecution, hence the previous statement of PW11, Devendra
Singh recorded in the murder case could be a valuable piece for cross-
examination in order to contradict him with his statement recorded in the case
u/s 25 Arms Act. In such view of the matter, I am of the view that the trial
court should have given an opportunity to the revisionist to cross-examine
PW11- Devendra Singh in the light of the statement of this witness recorded
in the case u/s 25 Arms Act inspite of the fact that delay had occurred in the
disposal of the cases. Delay cannot defeat justice and thus, on this ground the
application should not have been rejected nor on the ground that specific
questions were not opened by the revisionist, which were to be asked from the
witnesses.
So far as PW-6 Kamlesh Katiyar is concerned, this witness was not produced
in the case u/s 25 Arms Act, hence this witness was not available for
contradicting his previous statement with any subsequent statement and thus, I
feel that there is no need to summon this witness for cross-examination by the
revisionist.
In view of the above, the revision is partly allowed. The impugned order dated
22.6.2010 is modified to the extent that the order regarding summoning PW6-
Kamlesh Katiyar is allowed to be maintained and the order regarding
summoning PW11-Devendra Singh is set aside. The trial court is directed to
fix a date for cross-examination and summon PW11- Devendra Singh. If this
witness is available on that date the revisionist shall cross-examine him. If any
adjournment is taken, the trial court shall seriously view that adjournment and
if it is found that it was for the purpose of delaying the matter, it shall be
refused.
Order Date :- 16.7.2010
Pcl