IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36627 of 2006 SHIVPUJAN RAM & ORS Versus STATE OF BIHAR ----------- 5 08-08-2008 Heard Mr.Shailendra Kumar Singh, learned counsel for the petitioners and Sri Jharkhandi Upadhaya, learned A.P.P. for the State. The petitioners have prayed for the quashing of the order dated 29.7.2006 passed by the learned Presiding Judge, F.T.C.Vth, West Champaran at Bettiah in connection with Sessions Trial No.6 of 2001, whereby the petition for recall of P.Ws 1,2 & 3 under Section 311 Cr.P.C. has been rejected. The submissions advanced by the learned counsel for the petitioners is that the doctor examined in this case as P.W.4 had categorically stated that the injuries found on the person of the informant as also Mahadeo Sah and Ramjee Sah are simple in nature which were not dangerous and fatal to life and could be manufactured and in this view of the matter, an offence under Section 307 I.P.C. whereunder charge has been framed , does not appear to be sustainable . It was further submitted that P.Ws 1 and 3 were not cross-examined by the defence and were discharged and at the same time independent witnesses, Kishundeo Sah and Jagarnath Sah though named as witnesses in the F.I.R. as also in the chargesheet have not been produced by the prosecution. It was also submitted that good sense have been prevailed amongst the parties, they have entered into a compromise and have filed a petition in this regard before the court - 2 - below and for the said purpose P.Ws 1,2 & 3 were required to be recalled in order to cross-examine them on the point of compromise. Admittedly, charges were framed under Sections 147,148,341,323, 324 and 307 I.P.C. , of which only the offence under Section 307 I.P.C. was not compoundable . It appears from perusal of the impugned order dated 29.7.2006, whereby the prayer for summoning the aforesaid prosecution witnesses under Section 311 Cr.P.C. was rejected, that P.W.2 had fully supported the prosecution case and he was also cross- examined at length whereas in the case of P.Ws 1 and 3 after they had been examined in-chief notwithstanding repeated calls no one came forward to cross-examine them and the Presiding Judge was of the view that no opportunity could be given to the defence to cross- examining them now on the point of compromise only to resile from their earlier statements supporting the prosecution case. Be that as it may, a compromise petition duly signed by the informant and the accused persons and their respective lawyers has been filed in court which only goes to show that the parties have compounded and compromised their differences and peace has been restored amongst them. In such a situation the learned Presiding Judge will be well advised to reconsider the question of recalling the witnesses in the light of the compromise arrived at between the parties and the doctor’s evidence which, perhaps, indicates that an offence under Section 307 I.P.C. was not committed. In the event, the three witnesses sought to be recalled are - 3 - needed to be recalled and they resile from their earlier statements it shall be open to the court to take appropriate action against them. With the aforesaid observations, this application is disposed of . ( Abhijit Sinha, J) NKS/-