H.L. Capoor, J. - (1.) THE State of U.P. has preferred this application in revision against the orders dt. 14 -3 -1972 and 30 -3 -1972, of Sri S.K. Srivastava, Sessions Judge, Mirzapur, in Sessions Trial No. 53 of 1971 - -State v. Bhullan - -rejecting Application Nos. 34 -B and 36 -B for examining Chandra Bhushan alias Brij Bhushan (hereinafter referred to as Chandra Bhushan) as a witness on behalf of the prosecution and Under Section 540 Code of Criminal Procedure respectively.
(2.) IT appears that Bhullan, accused opposite party, lodged a report at PS Chopan on 11 -10 -1970, at 9.05 O'clock in the morning alleging that on the night between 10/11th October, 1970, at about 4 O'clock in the morning while he was coming after easing himself he heard the cries of Jamuna Devi, his Malkin, and having reached there he saw in the light of the torch that Chandra Bhushan alias Brij Bhushan, S/O Ghanshyam, R/O Qasba Roberts Ganj, was assaulting Jamuna Devi with a Gandasa and that two other persons were catching hold of the hands of Jamuna Devi and one other person was standing near her with a gun in his hand. On an alarm being raised by him, the man holding the gun fired a shot at him. Dangar and Chhotaka, according to him, had seen the incident. On seeing the witnesses coming, the assailants including Bhullan made good their escape. During the investigation of the aforesaid report lodged by Bhullan it was discovered that Bhullan himself committed the murder of Jamuna Devi and had lodged a false report to screen his guilt. Bhullan was arrested only two days after the incident and on his pointing out a Kulhari said to be the weapon of murder was recovered from below cow -dungs and blood stained clothes and a pistol were also recovered from a hole made in the wall of his residential Kothri. On a chargesheet being submitted by the investigating Officer against Bhullan Under Section 302 IPC a list of the prosecution witnesses was given but the name of Chandra Bhushan was not mentioned in it. After an enquiry by the Magistrate, Bhullan was committed to the court of Sessions and in the calendar prepared by him the name of Chandra Bhushan was not mentioned. Even in the opening address at the time of the commencement of the trial the name of Chandra Bhushan was not mentioned as a witness to be examined by the Public Prosecutor. It however, transpired that the investigating officer had recorded the statement of Chandra Bhushan Under Section 161 Code of Criminal Procedure. Dangar, who was named in the FIR lodged by Bhullan, was examined in the court of Sessions as a prosecution witness and he denied the suggestion that Chandra Bhushan had committed the murder of Jamuna Devi. It was in these circumstances that it was considered necessary by the prosecution that Chandra Bhushan be examined as a prosecution witness to negative the suggestion given by the defence and to give an opportunity to the defence to cross -examine the suspected assailant. An application was, accordingly made, but it was rejected by the learned Sessions Judge on 14 -3 -1972, on the main ground that if this witness was to be examined on behalf of the prosecution at such a late stage, that is, after about six months of the trial having started, it would prejudice the accused. By the time this application was moved the prosecution evidence had not closed. The learned Sessions Judge was unjustified in rejecting the prayer made on behalf of the prosecution to examine Chandra Bhushan as a witness and the view taken by him that it would prejudice the accused is unwarranted. No question of any prejudice could have arisen when the prosecution evidence was still going on. The learned Sessions Judge, if the accused so wanted, could have allowed the prosecution witnesses whose statements had already finished to be cross examined by the defence.
(3.) AT any rate another application was made on 30 -3 -1972, for summoning Chandra Bhushan Under Section 540 Code of Criminal Procedure, but this application too was rejected by the learned Sessions Judge only on the ground that he did not consider it necessary to summon the person concerned Under Section 540 Code of Criminal Procedure. To my mind, this view taken by the learned Sessions Judge also does not seem to be correct. Section 540 makes it clear that at any stage the Court could examine a witness and in the circumstances as narrated above, even if the learned Judge had rejected the earlier application of the prosecution he ought to have allowed the application Under Section 540 Code of Criminal Procedure and should have examined Chandra Bhushan as a Court witness.;