ARSLAN ZAHEER Vs. STATE OF U.P. AND ANOTHER

JUDGEMENT

(1.) Supplementary affidavit filed by learned counsel for the applicant is taken on record. This application u/s 482 Crimial P.C. has been filed by the applicant for quashing the impugned order dated 22.6.2016 passed by Addl. District & Sessions Judge, Court No.15, Kanpur Nagar in S.T. No.77 of 2015 arising out of Case Crime No.69 of 2010 u/s 307, 364 Penal Code P.S. Feelkhana District Kanpur Nagar whereby the application moved on behalf of accused seeking the summoning of the Hotel Register for the purpose of cross-examination has been rejected.

(2.) Heard learned counsel for the applicant and learned AGA and perused the record.

(3.) Submission of the counsel for the applicant is that the alleged kidnapped victim girl Priyanka Somani is being cross-examined in the trial as P.W.3. The defence of the accused applicant is that actually she had gone on her own volition along with co-accused and had stayed in a hotel in Allahabad where she had also filled-up in her own hand writing the relevant columns of the hotel register. It has been submitted that as the witnesses was still being cross-examined, it was very relevant to ask the questions with regard to the aforesaid facts. It has been submitted that the correct legal position is that if a fact has been reduced into writing in the form of a document and the document contains the hand writing of a witness then in the event of denial of that fact by that witness the document so denied by the witness has to be confronted in its original form to the witnesses. Submission is that photostat copy of the document(hotel register) has already been submitted in the court and the girl was asked questions with regard to her stay in the hotel and this was specifically put to the witness that she had filled-up the relevant columns in her own handwriting. But the girl denied all such suggestions. It has been submitted that it is therefore, very much needed that the original hotel register containing entries in the register in the hand writing of the girl as is being claimed by the applicant should be made available in the court to facilitate the relevant cross-examination on that aspect of the case. Submission is that such cross-examination is necessary to arrive at the correct conclusions and will go a long way to assist the court to reach the just decision of the case. It has been submitted that an application seeking summoning of the aforesaid register was moved before the trial court but the application was rejected by the trial court and it was observed that the applicant may summon the same and prove it at the stage of his defence. It has been submitted that though at the stage of defence the applicant can summon the witnesses of its choice or the document which are relevant but there is a qualitative difference between the cross-examination of the witness and proving a document in the defence. In fact the cross-examination done with the witness in the absence of original record can also be criticized at some stage for being not in accordance with the rules as it is required that the witness can be confronted with her statement only when her attention has been drawn to the contradictory version of the facts which have been reduced into writing. The cross-examination will remain incomplete unless the girl has been confronted by original entries said to have been made in her own hand writing. Submission is that the impugned order whereby application seeking the summoning of Hotel register has been rejected, therefore, will not be conducive to the just ends of the case.