Ravindra Singh - (1.) HEARD Sri Rajul Bhargava, learned counsel for the applicant and the learned A.G.A. for the State of U. P.
(2.) THIS application has been filed with a prayer to quash the order dated 4.8.2008, passed by the learned Additional Sessions Judge/ F.T.C.-I, Basti in S.T. No. 23 of 2003 whereby the application No. 284 Kha filed by the applicant for sending the specimen hand writing of P.W. 4 Chandra Prakash Yadav, to the Hand Writing Expert for the comparison with the application No. 5 Ka/98 in the case of State v. Jai Ram, has been rejected. The facts of the case in brief are that O. P. No. 2, Subhash Chandra Yadav has lodged the F.I.R. on 24.3.2002 at 10.30 p.m. in respect of the incident which had occurred on 24.3.2002 at about 8 p.m. at P. S. Mahuli in Case Crime No. 44 of 2002, under Sections 147, 148, 149, 323, 504, 307 and 302, I.P.C. against the applicant and other co-accused persons in which the applicant and other co-accused persons have been charge-sheeted and the same has been committed to the court of sessions, which is pending in the Court of learned Additional Sessions Judge/F.T.C.-I, Basti vide S. T. No. 23 of 2003, State v. Mithai Lal, its cross F.I.R. has been lodged by Ram Bharat Yadav on 11.4.2002 at 11.30 a.m. in respect of the incident which had occurred on 24.3.2002 at about 8 p.m. at P. S. Mahuli in Case Crime No. 44A of 2002 under Sections 147, 148, 149, 323, 308, 394, 504 and 506, I.P.C. in which O. P. No. 2 also named as accused but after investigation the charge-sheet has been submitted, which has also been committed to the court of session, and is pending in the Court of Additional Sessions Judge/F.T.C.-I, Basti vide S. T. No. 199 of 2007, State v. Jai Ram and others, the session trial of the above mentioned cases are pending in the same Court, the applicant is facing proceedings of S. T. No. 23 of 2003 in which the statement of Chandra Prakash Yadav has been recorded as P.W. 4, who is an injured witness, after his cross-examination recall application Nos. 259 Kha and 260 Kha were moved by the defence side for the purpose of the cross-examination of P.W. 4 on the point that he has sent the application No. 5 Ka/98 to S. P. Sant Kabir Nagar, the same was allowed and Chandra Prakash Yadav P.W. 4 was summoned for re-cross-examination, thereafter he appeared but he had denied the suggestion that during investigation of the case State v. Jai Ram, he had sent the application No. 5 Ka/98 in his hand writing to S. P. Sant Kabir Nagar, even then the contents of the application No. 5 Ka/98 were transcribed on a paper by P.W. 4 Chandra Prakash Yadav, in the Court, and thereafter, the application has been moved by the applicant to send the specimen hand writing and the application No. 5 Ka/98 allegedly written by P.W. 4 to the hand writing expert to ascertain that it has been written by P.W. 4 the same has been rejected by the learned trial court vide order dated 4.8.2008, being aggrieved from the order dated 4.8.2008 the present application has been filed by the applicant. It is contended by the learned counsel for the applicant that there are cross version of the alleged incident, the applicant is facing the proceedings of S.T. No. 23 of 2003 under Sections 147, 148, 149, 307, 323, 504 and 302, I.P.C. its cross case is also pending in the same Court vide S.T. No. 199 of 2007, the P.W. 4 was also an accused in the cross case but he has not been charge-sheeted. It is alleged that he is an injured witness of the present case and his statement has been recorded in the Court as P.W. 4, during investigation of the cross case State v. Jai Ram and others, application has been moved by P.W. 4 to S. P. Sant Kabir Nagar, for that purpose P.W. 4 Chandra Prakash Yadav was re-summoned for the purpose of further cross-examination, but he denied the suggestion that he had not sent such application No. 5 Ka of 1998 in his hand writing, thereafter, hand writing the contents of the same application was obtained in the Court as specimen. The application filed by the applicant for sending the 'specimen hand writing' and the application No. 5 Ka of 1998, sent by O.P. No. 4 to the S. P. Sant Kabir Nagar during investigation of the case, but it has been illegally rejected by the trial court, in case the comparison of the hand writing is not made, the applicant shall suffer irreparable loss because in both the cases, place of occurrence is different but the time of the incident is the same, according to the application No. 5 Ka of 1998 P.W. 4 was present at the place of the cross case also, whereas he claimed his presence at the place of occurrence of this case and sustained injury. It is not possible for a person to be present at different places at a time. The learned trial court has committed manifest error by not sending the specimen hand writing of P.W. 4 and application No. 5 Ka of 1998 for comparison to the hand writing expert, the impugned order is illegal and it may be set aside and a suitable direction may be issued so that the specimen hand writing of P.W. 4 and application No. 5 Ka of 1998 may be compared by the hand writing expert.
(3.) IN reply to the above contention, it is submitted by the learned A.G.A. that in the present case cross F.I.R. has been registered and in both the cases charge-sheets have been submitted, P.W. 4 is not an accused in cross case, whereas he was named in the F.I.R. but during investigation, it was found that he had not committed the alleged offence but in the present case he had sustained injuries, his presence cannot be doubted, he has been re-summoned by the learned trial court on the application filed by the applicant for the purposes of putting him on cross-examination about the application No. 5 Ka of 1998, which was allegedly sent by O.P. No. 4 to S. P., Sant Kabir Nagar but P.W. 4 Chandra Prakash Yadav had denied his hand writing by submitting that application No. 5 Ka of 1998 was not written by him and he has denied his signature also, even then for the purpose of satisfaction of the trial court, his hand writing of same contents was obtained by the learned trial court, the trial court has not committed any error in sending the application No. 5 Ka of 1998 for the purpose of comparison to the hand writing expert because it was not essentially required for the just decision of the case, even the application was not sent in the present case, it was sent to the S.P. Sant Kabir Nagar in the cross case, and it has been denied by P.W. 4, in such a situation, the learned trial court rightly rejected the application No. 284 Kha filed by the applicant vide order dated 4.8.2008, there is no illegality in the impugned order. Considering the facts, circumstances of the case and submission made by the learned counsel for the applicant and the learned A.G.A. and from the perusal of the record it appears that the application No. 5 Ka of 1998 sent to S.P., Sant Kabir Nagar in the name of P.W. 4 during investigation of the cross case, has not been admitted by P.W. 4 Chandra Prakash Yadav whereas the learned trial court has summoned the P.W. 4 under Section 311, Cr. P.C. on the same issue at the request of the defence side, he had denied the suggestion of the defence by stating that he had not written the application No. 5 Ka of 1998, thereafter, the learned trial court has taken his specimen hand writing of the same contents for the purpose of assessing the truth. The learned trial court has rightly rejected the application filed by the applicant for sending the specimen hand writing of P.W. 4 and application No. 5 Ka of 1998 to the hand writing expert to establish that the application was written by P.W. 4 Chandra Prakash Yadav, which was not essentially required for the just decision of the case whereas he has denied the same. The accused cannot use a Court in exercising the powers under Section 311, Cr. P.C. for the purpose of creating/developing the defence or to discredit the testimony of a witness by way of summoning a witness or its report at his/her choice. The learned trial court has not committed any error in passing the impugned order, therefore, the prayer for quashing the impugned order dated 4.8.2008 is refused. Accordingly, this application is dismissed.;