- (1.) K. N. OJha, J. Instant revision has been preferred against order dated 30-6-2000 passed by learned Sessions Judge, Muzaffar Nagar, in Sessions Trial No. 274 of 2000, State v. Sanjeev and others, under Section 302, 120b IPC, police station Titabi, district Muzaffar Nagar, by which three fact witnesses have been recalled for re-examination and the Sessions Trial of co-accused Yogesh whose case was later on committed to the Court of Sessions, has been consolidated with the Sessions Trial of the revisionists.
(2.) HEARD Sri S. P. S. Raghav, learned counsel for the revisionist, Sri Shekhar Yadav, learned AGA and Sri Akhilesh Singh, learned counsel for the opposite party No. 2 and have gone through the record. The fact of the case is that S. T. No. 274 of 2000 is pending in the Court of Sessions Judge, Muzaffar Nagar against the revisionists Sanjeev, Har Pal and Smt. Jagveeri Devi, residents of village Mukundpur, police station Titabi, district Muzaffar Nagar, under Sections 302, 120b I. P. C. The charge under Sections 302, 120b I. P. C. has been framed against the accused revisionists and three fact witnesses PW 1 Pappi, PW 2 Sheetal and PW 3 Parvender alias Bittu were examined in June 2000. The case could not be finally decided. In the meanwhile absconding co-accused of the crime, Yogesh Surrendered before the Magistrate and his case was committed to the Court of Sessions. His case was registered as Sessions Trial No. 909 of 2000, State v. Yogesh. Learned ADGC (Criminal) moved an application to consolidate the case of Yogesh with the case of the co-accused revisionists. A prayer was made for recall of the witnesses also. The prayer for consolidating both the S. T. No. 274 of 2000 and S. T. No. 909 of 2000 was allowed and three fact witnesses, who were already examined six months before in the case in which the revisionists are accused, were recalled for re-examination. Aggrieved there from instant revision has been preferred. Section 223 of Cr. P. C. contemplates that accused persons may be charged and tried together provided the offence is committed in the course of same transaction or there is charge of abatement or the offence are of the same kind or the offences are committed in the same transaction or the offences are of like nature and connected to each other. But proviso clause of Section 223 of the Code envisaged that where a number of persons are charged with separate offences and if such persons by an application in writing so desire and if the Magistrate is satisfied that such persons would not be prejudicially affected thereby and it is expedient so to do, try all such persons together.
(3.) THUS three conditions must exist before separate trials of accused persons of the same crime of related crime are made together. Firstly, there should be an application in writing that their cases should be tried together. Secondly, the Court is satisfied that no accused is prejudicially affected and thirdly, it is expedient so to do, all such persons be tried together. In the instant case it is a fact that the revisionists, who are accused in S. T. No. 274 of 2000 and co- accused Yogesh, who is accused in S. T. No. 909 of 2000 are accused in the same crime, but the stages of their cases are different. In the case of the revisionists not only charges have been framed, but all the three fact witnesses have been examined. Photostat copies of statements of all these fact witnesses are annexed with the revision, which are Annexure Nos. 2, 3 and 4. The statement of these fact witnesses shows that they were declared hostile by the prosecution because they stated that some persons covering their faces with cloths came and committed murder of two persons of the family of the complainant Pappi. When six months have passed away, the statements of these witnesses were recorded, Yogesh Surrendered and his case was committed to the Court of Sessions, an application under Section 311 of Cr. P. C. was moved, which was allowed by the Court of Sessions.;