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1. This criminal revision has been filed by Akbal Bahadur Tiwari and another challenging the order dated 14.2.2013 passed by the Additional District and Sessions Judge, Room No.9, Gonda in Sessions Trial Nos.56 of 1999 and 42 of 2009 (State v. Vijay Pal and others) arising out of Case Crime No.341 of 1998, under Section 302 IPC, Police Station Tarabganj, District Gonda by which the learned court below has allowed the application under Section 319 Cr.P.C. and summoned the revisionists to face trial.

4. Learned AGA has submitted that the trial court has dealt with this aspect in the order, and has held that the statement of the witness (now deceased) will be read under Section 299 Cr.P.C., and that is sufficient to convict the accused persons, hence the order passed by the trial court is perfectly justified.

5. It will be apt to mention that this case was being investigated by the CBCID, and charge sheet was submitted against other accused persons except the revisionists, namely, Akbal Bahadur Tiwari and Yogendra Pratap Tiwari. It will also be apt to mention that the application under Section 319 Cr.P.C. was moved and all the witnesses of fact were examined, and except PW-1, all the witnesses of fact were declared hostile. They have not supported the prosecution version. PW-1, admittedly, is now dead.

6. Previously, when CBCID has filed charge sheet, they exonerated Akbal Bahadur Tiwari and Yogendra Pratap Tiwari, so an application was moved by the informant for summoning them. This application was allowed by the Judicial Magistrate, Gonda on 10.1.2000. Criminal Revision No.6 of 2000 was filed before the Sessions Judge, which was transferred to the Civil Judge, NDPS Judge, Gonda, who after hearing the parties, allowed the revision, and quashed the impugned order dated 10.1.2000 vide order dated 5.1.2002. Against this order, the writ petition was filed by Raj Narain Tiwari, which was abated on account of his death vide order dated 21.1.2013. In the meantime, an application under Section 319 Cr.P.C. was moved by Raj Narain Tiwari, when he was alive, for summoning Akbal Bahadur Tiwari and Yogendra Pratap Tiwari. This application was rejected vide order dated 6.3.2009 by the trial court. Feeling aggrieved by the above order, Application under Section 482/387/407 Cr.P.C. No.2403 of 2010 was filed by Kamlendra Tiwari, son of the informant. This petition was allowed, and it was directed that the trial court is directed to decide the application under Section 319 Cr.P.C. afresh in the light of latest legal position settled by the Hon'ble Apex Court in the case of Sarojben Ashwinkumar Shah and others v. State of Gujarat and another, (2011) 13 SCC 316. After this, the matter was again heard by the trial court, and the trial court passed the impugned order. Feeling aggrieved, this criminal revision has been preferred.

19. In view of the above, this criminal revision is liable to be allowed, and is hereby allowed. The impugned order is quashed. The matter is sent back to the trial court to decide the application under Section 319 Cr.P.C. afresh in the light of the observations made above and earlier observations of this Court.

Order Date :- September 13, 2013 Anupam (Justice Arvind Kumar Tripathi - II)