Court No. - 65
Case :- APPLICATION U/S 482 No. - 35819 of 2019 Applicant :- Sajid Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Anurag Vajpeyi,Praveen Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Anurag Vajpeyi, learned counsel for the applicant and Sri Ankit Srivastava, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed with a prayer to set-aside the order dated 06.07.2019 passed by learned Additional Sessions Judge/Fast Track Court No. 1, Gautam Budh Nagar in S.T. No. 146 of 2013 arising out of Case Crime No. 995 of 2012 under Sections 452 and 376 I.P.C., P.S. Sector 20 Noida, District Gautam Budh Nagar.
Learned counsel for the applicant has argued that the trial court has erroneously dismissed his Application 73-Kha vide order dated 06.07.2019 in which prayer was made that P.W.7 (I.O.) be summoned to be cross-examined regarding two questions:-
(i) In arrest memo, name of one Vivek Kasana is mentioned but his parentage and residential address is not mentioned and it has to be asked from I.O. as to why the said witness was not examined under Section 161 Cr.P.C. by the I.O.
(ii) The I.O. had taken into possession the clothes of the victim on 18.10.2012 but the same were sent for being examined in F.S.L. on 30.10.2012 after considerable delay but no such explanation has been given as to why they were sent after such delay.
Learned counsel for the applicant has argued that these two questions were very material unless he puts these questions to the I.O. and elicits answers from him, his defence would be prejudiced.
Learned A.G.A. has opposed the prayer of quashing of impugned order and permitting the P.W.7 to be cross-examined again because statement of P.W.7 was closed on 24.09.2014 and since then no application was ever made while these facts which were being raised today were already in the knowledge of the accused applicant.
I have gone through the impugned order and find that the trial court has recorded that the evidence of the P.W.7 was initiated on 4.04.2014 and thereafter was concluded on 24.09.2014. It has further been rightly pointed out by learned A.G.A. that these questions which are now being raised could have been asked from P.W.7 during the period of said cross-examination. Further I find that the stage of defence evidence is going on as is admitted to the learned counsel for the applicant, hence if he wants to examine Vivek Kasana, he may move an application before the court concerned to summon the said witness in defence and if for some reason, it is not possible to summon the said witness due to lack of address or other reasons, the trial court may take into consideration as to what benefit may go to the accused applicant. Further sending the clothes with delay by I.O. to F.S.L. is also a question of fact and the said situation cannot be reversed nor any modification can be made and if any benefit of the same is to go to the accused, the same would go.
I do not find any any infirmity in the impugned order and the same is upheld, hence this Application deserves to be dismissed and is, accordingly, dismissed.
Order Date :- 26.9.2019 A. Mandhani