Court No. - 72
Case :- APPLICATION U/S 482 No. - 16659 of 2019 Applicant :- Amit Yadav Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Manish Tiwary,Ashwini Kumar Awasthi Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Shri Manish Tiwary, learned counsel for the applicant and Shri Vikas Goswami, learned AGA for the State.
2. The present application under Section 482 Cr.P.C. has been filed to quash the order dated 05.03.2019 in Sessions Trial No. 436 of 2015 (State Vs. Amit Yadav & Ors.), under Sections 302/34, 120B IPC and Section 3/25, Arms Act, Police Station Chowk, District Varanasi, pending in the court of the Additional District & Sessions Judge, Court No. 10 (POCSO), Varanasi.
3. Learned counsel for the applicant submits that the prosecution is proceeding on a completely concocted evidence, inasmuch as in the FIR and during investigation, it was alleged that one Tinku Yadav, son of Govind Yadav had seen the occurrence. On such allegation and statement, the applicant had been arrested and remained confined for about two years till his bail was granted by this Court.
4. It is stated that during trial, numerous processes were issued to Tinku Yadav, son of Govind Yadav for the purpose of recording his evidence. The same were received by the informant, i.e. Ghanshyam Yadav, son of Govind Yadav. He also filed applications seeking adjournments on behalf of Tinku Yadav on grounds of illness.
5. Subsequently, in the bail proceedings before this Court, a report of the Sessions Judge was called as to the existence of any person by the name of Tinku Yadav, son of Govind Yadav, whereupon it transpired that Govind Yadav had only three sons, namely Ghanshyam Yadav (informant), Preetam Yadav and Nagina Yadav (who had been murdered earlier). In such circumstances, the bail of the applicant had been allowed.
6. In such circumstances, learned counsel for the applicant submits that there is fatal flaw in the prosecution story, inasmuch as the identity of the alleged sole eye witness is being fabricated and now Arjun Yadav, son of Sovind Yadav is being introduced as the person Tinku Yadav. Therefore, the applicant/accused person has approached this Court against the order dated 05.03.2019, summoning Arjun Yadav to depose in the criminal trial.
7. Shri Vikas Goswami, learned AGA, on the other hand, submits that no conclusion can be drawn today as to the false identity of the prosecution witness, as the applicant will have all opportunity to cross-examine the person who may be produced as Tinku Yadav and to establish therefrom whether the said person has been falsely set up.
8. Having heard learned counsel for the parties and having gone through the record of the present application, at present, the Court would not hazard to record a conclusion that the person being sought to be produced as Tinku Yadav is not that person but another. Matter of identity of the witness would essentially be a question of fact. The applicant will have ample opportunity to establish the falsity of the identity of the witness during trial. The fact that certain reports had been submitted in the bail proceedings and further fact that the informant had been receiving the processes on behalf of Tinku Yadav and representing on his behalf, would further be material with which the applicant may cross-examine and confront that witness.
9. However, needless to add, in view of the identity of the witness being impeached, it will be for the court below to consider that issue with utmost seriousness and proceed accordingly.
10. The present application is accordingly disposed of.
Order Date :- 26.4.2019 AHA