SANJAY JAYANTILAL PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) RULE . Ms. Jirga Jhaveri, Ld. APP waives service of rule for the respondent. The application is original accused in Sessions Case No. 28/2012, wherein evidence of prosecution is being recorded. During active trial, the applicant accused was for one or other reason, required to change his advocate and new advocate was engaged and appeared for the accused on 28/5/2013. When such advocate has found that previous advocate has failed to cross -examine the victim so far as contradictions in her statement and deposition before the court are concerned, an application at exh. 20 was filed under section 311 of the Criminal Procedure Code [for short 'Cr.P.C.'] so as to recall the victim for further cross examination so I far as the contradictions are concerned. Ld. Advocate before the trial Court for the accused had fairly contended that previous advocate has, may be by oversight, forgot to cross -examine the victim so as to confirm the contradictions and, therefore, it is necessary to recall such victim.

(2.) SUCH application was resisted by the prosecution and though the applicant was relying upon the judgment rendered in the case of P. Sanjeeva Rao v. State of A.P. Reported in, 2012 AIAR [Cri] 707 and in the case of Kiran Kantibhai Raval v. State of Gujarat in Criminal Revision Application No. 522 of 2012, the trial Court had opined that fair trial means fair trial for both the sides i.e. not only for the accused but also for the victim and, therefore, when factual details of cited cases are different and when the affidavit of previous advocate was not filed on record, witness cannot be recalled and thereby the application to recall the victim was dismissed by order dated 12/7/2013, which is challenged in the present revision application.

(3.) RELYING upon such settled legal position, when the applicant accused has fairly stated that previous advocate has, may be by bonafide mistake, failed to cross -examine the victim so far as -the contradictions are concerned, there is no reason to ' deny an opportunity to the accused applicant to further cross -examine the victim at -least for contradiction, if any, in her previous statement and deposition before the Court. Though Ld. APP has supported the impugned order, it becomes clear that if accused is restrained from recalling the victim as prayed for, which results into restriction in cross -examining the witness so as to confirm the contradictions, which would certainly prejudice the valuable and constitutional right of the accused to prove his innocence and thereby accused may get benefit of doubt for an order of acquittal. Therefore, it would be appropriate to recall the victim so as to avoid any technical defence from the accused at the final arguments. In view of such facts and circumstances, the Revision Application is partly allowed; however, with the condition that though impugned order is set aside, the further cross -examination of the victim should be restricted to the contradictions with previous statement and deposition only and the applicant accused shall not be allowed to cross -examine the victim again so far as her cross -examination made by previous advocate is concerned. Thereby accused can cross -examine the victim only for the purpose of recording' contradictions and not any more. Thereby revision application is partly allowed to the aforesaid extent. Rule is made absolute accordingly. Interim relief is vacated.