Uttarakhand High Court
Dilshad And Another ... vs State Of Uttarakhand And Another on 26 August, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 478 of 2022
Dilshad and another ..........Revisionists
Vs.
State of Uttarakhand and another ........ Respondents
Present : Ms. Pushpa Joshi, Senior Advocate assisted by Ms. Chetna Latwal,
Advocate for the revisionists.
Mr. Lalit Miglani, A.G.A. with Ms. Sonika Khulbe, Brief Holder for the
State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to the
order dated 03.08.2022, passed in Sessions Trial No.158
of 2016, State vs. Dilshad and others, passed by the court
of District and Sessions Judge, Haridwar (for short, "the
case").
2. The case is pending under Sections 302/34
and 506 IPC, P.S. Kotwali Roorkee, District Haridwar. It
appears that during the course of trial, an application
under Section 311 of the Code of Criminal Procedure,
1973 (for short, "the Code") has been moved by the
revisionists for further cross-examination of PW2 Irshad,
on pointed questions, which has been rejected by the
impugned order.
3. According to the FIR in the case on 16.10.2015,
at about 02:15 PM, when the deceased Hameed was
returning after offering Friday Namaz in the Mosque, he
was attacked by the applicants and others with kicks,
fists, bricks and danda, due to which, he died. PW2
Irshad has already been examined in the trial. He has
stated about the incident. Although, the application
under Section 311 of the Code and the impugned order do
not reveal that how many witnesses have been examined,
but State in its objection has stated that after PW2
Irshad, 15 more witnesses have been examined.
4. Heard learned counsel for the revisionist and
perused the record.
5. Learned Senior Counsel for the revisionist
would submit that in order to falsify the testimony of PW2
Irshad, it is necessary to cross-examine him on certain
more points.
6. It is submitted that, in fact, the pointed
questions have already been stated in the application,
which ought to have been allowed by the court below but
the court below has committed an error in the eyes of law
by rejecting this application.
7. Section 311 of the Code gives ample power to
the court to re-examine or to permit further cross-
examine of any witness if it is necessary to just decision
of the case.
8. The questions, which are proposed to be asked
relates to:- (i) As to whether, the accused had taken the
bricks or any weapon along with them; (ii) How many lines
were formed in the mosque on the date of incident? (iii)
Whether PW2 Irshad and deceased sat on the same row
on that date while offering namaz? (iv) Who amongst the
PW2 Irshad and deceased Hamid was in the front row and
who was in the second row? And lastly; (v) Whether
sunnat namaz is also offered immediately in the mosque
or it is offered later?
9. The answers of these questions would definitely
be totally immaterial for the decision. Witnesses have
already been examined. Defence cannot get any
discrepancies by merely asking the proposed questions from
PW2 Irshad because if these questions have been put to
the other witnesses, PW2 Irshad may also copy them and
if they have not been put to any other witness, the answer
which may be given by PW2 Irshad, in no manner could
create discrepancies.
10. There may be thousands of questions, which
may be asked from a witness with regard to an incident.
The testimony of PW2 Irshad is on record. He has been
cross-examined in detailed. At page 1, last two lines, he
has stated that the "Friday Namaz" was over by 02:00 PM
and thereafter sunnat is offered, he has stated that how
many people were there for namaz.
11. The court below has rightly concluded that the
further cross-examination is not necessary for just
decision of the case. The court below has, in fact, rightly
observed that the application under Section 311 of the
Code does not appear to have been filed with any good
faith. In fact, this Court concludes that this application
has been filed by the revisionists with some oblique
motive. The Court does not want to go deeper on those
issues. These are fancible questions tailored, just to seek
courts indulgence so that PW2 Irshad may again be called
as a witness, which has rightly been rejected.
12. Having considered the submissions, this Court
is of the view that there is no reason to interfere in this
revision and it deserves to be dismissed at the stage of
admission itself.
13. The revision is dismissed in limine.
(Ravindra Maithani, J.)
26.08.2022
Sanjay
