DRJ Vs. BAHADUR SINGH

JUDGEMENT

(1.) PW2 Mr. L.S. Bist was recalled for cross-examination by the accused. Witness was recalled on an application under Section 311 Code of Criminal Procedure filed by the accused. PW2 was tendered for cross-examination on 11th August, 2004 and 19th July, 2005 by the Petitioner. However, he could not be cross-examined on these dates at the request of defence counsel. Unfortunately, on the next date i.e. 28th July, 2006 witness could not appear in the court, consequently, prosecution evidence was closed. Consequence of this would be that his examination-in-chief cannot be read against the accused. Realizing this, Petitioner filed an application under Section 311 Code of Criminal Procedure for recalling PW2 Mr. L.S. Bist, which was dismissed by the learned Additional Chief Metropolitan Magistrate (A.C.M.M.), Delhi on 20th September, 2006. As per the learned A.C.M.M. this application was filed to fill-up the lacuna and to drag on the case.

(2.) I do not find the reason, as given by the learned trial court, to be cogent and convincing. It was at the instance of the accused, PW2 was recalled for cross-examination. PW2 even appeared in the court on two consequent dates when it is the defence counsel who sought adjournments. In this scenario, it cannot be said that prosecution was desirous of recalling this witness for cross-examination by the accused in order to fill-up any lacuna or to drag on the litigation. Accordingly, impugned order is set aside.

(3.) Let the parties appear before the learned trial court on 31st August, 2010 when the date for recording evidence shall be fixed and summons be issued to PW2.