Vishnu Chandra Gupta, J. - (1.) HEARD learned counsel for the petitioner and learned A.G.A. By means of this petition u/s. 482 Cr.P.C. petitioner has prayed to set aside the order dated 21.05.2013 passed by learned Special Judge, SC/ST Act, Lucknow in Session Trial No. 406/97, arising out of Crime No. 301 of 1996, under Section 147, 148, 323, 302 I.P.C. and 3(2)(V) SC/ST Act relating to Police Station Malihabad, by means of which the learned Trial Court rejected the application of accused persons moved under section 311 Cr.P.C. to recall PW. 1 Vikram Pasi on the basis of a subsequent statement made by him in a separate trial.
(2.) THE order has been assailed by learned counsel on a limited question; whether finding recorded by the trial Court while rejecting the application under Section 311 Cr.P.C. that subsequent statement given by Vikram Pasi in Gangster case is the result of compromise in between the accused and Vikram Pasi ? It is submitted on behalf of learned counsel for the applicant that learned Trial Court not only rejected the application on incorrect fact but also observed that statement of Vikram Pasi given in the case of Gangsters Act is the outcome of compromise arrived at in between accused and the witness, which is based on no material. Learned counsel for the applicant further submitted that when the court has formed this opinion that the subsequent statement given by the witness is the outcome of compromise between accused and the witness no fare trial is expected from the Court. It is further submitted that petitioner has already submitted the certified copy of the statement of Vikram Pasi recorded in the case of Gangsters Act alongwith the application under Section 311 which is already on record. This apprehension cannot be ruled out that the court will consider the statement in the light of the aforesaid pre -supposition.
(3.) I am in agreement with the submission made by the learned counsel for the applicant to some extent, but I am of the view that purpose will be served if direction is given to the trial Court that Court will not act upon any hypothesis without any material or evidence to the effect that subsequent statement given by Vikram Pasi is based on compromise with accused.;