S.P. Pathak, J. - (1.) THIS petition under Section 482 Cr.P.C. has been filed against the order dated 19.5.2010 passed by the Additional Sessions Judge (Fast Track) No. 2, Karauli in sessions case No. 4./2007 by which the application filed by the petitioner under Section 311 Cr.P.C. dated 12.4.2010 has been dismissed.
(2.) BRIEFLY stated the facts for the disposal of the case are that the petitioner is the complainant in the case and the accused -respondents are facing criminal trial for the offence under Sections 147, 148, 149, 323, 324, 325, 307 and 452 IPC before the Additional Sessions Judge (Fast Track) No. 2, Karauli. On 12.4.2010, an application under Section 311 Cr.P.C. was moved by the petitioner stating, inter -alia, that since injured Ram Prasad died due to the injuries suffered by him and his statement recorded under Section 161 Cr.P.C. was required to be proved by Maniram and he is, therefore, required to be recalled. The learned trial court after hearing both sides found that the witness Ram Prasad had expired after more than 1 -1/2 years of recording his statement by the police under Section 161 Cr.P.C. The learned trial court finding that the injured witness had died after long time of recording of his statement, therefore, his statement cannot be treated as his dying declaration. The trial court, therefore, rejected the application. It is not only the injured who is a witness of the incident but there are several other witnesses also. It is not in dispute that after more than 1 -1/2 years of recording his statement under Section 161 Cr.P.C., the witness had expired. Ram Prasad was medically examined on 15.3.2006. He sustained in all six injuries on head and other parts of the body. He was medically examined by Dr. Umesh Kumar and in his opinion some of the injuries on head and injury Nos. 1, 2 and 4 were of grievous nature and injury Nos. 5 and 6 were of simple nature. It was also opined that injury Nos. 1 and 2 were sufficient in the ordinary course of nature to cause his death. Thus, in the present case, much after recording the statement Ram Prasad died, therefore, to treat the alleged statement under Section 161 Cr.P.C. as his dying declaration was not the correct legal proposition. The learned trial court has not committed any illegality in rejecting the application moved by the petitioner to recall the witness Maniram. This misc. petition being devoid of merit is liable to be dismissed.
(3.) IN the result, this misc. petition is dismissed.;