SAHDEV Vs. STATE OF U P

JUDGEMENT

(1.) This revision is directed against the order dated 20. 11. 2008 passed by the Additional District & Sessions Judge/ F. T. C. No. 2, Baghpat, in S. T. No. 285 of 2003, State Vs. Sahdev and others. By this order the court below has drawn an adverse inference against the revisionist u/s 114 of the Indian Evidence Act as in the opinion of the court the order dated 30. 8. 2008 passed by it was not complied with. It appears from the record that vide order dated 30. 8. 2008 the request of the prosecution was accepted and the defence was directed to produce DW1 Omveer Singh and DW2 Sahdev for further cross- examination by the prosecution. When the case came up for hearing on 20. 11. 2008 the counsel for the defence was not available and in such circumstance the court concluded that the defence had not produced DW1 and DW2 and therefore, an adverse inference was liable to be drawn against the defence. I have heard Mr. R. R. Pandey, learned counsel for the revisionist, learned AGA for the State and perused the record. It has been argued by Mr. Pandey that DW1 Omveer Singh and DW2 Sahdev were accused in the case and when the court had written in the order dated 20. 11. 2008 that the accused were present, by that it can be said that the defence witnesses were present for cross-examination. The contrary fact recorded by the court in the order is not correct and thus the impugned order is improper. I agree with the argument of Mr. Pandey. It appears from the order dated 20. 11. 2008 that it is contradictory in itself. On the one hand the trial court says that the accused were present and on the other hand it is said that DW1 and DW2 were not present. How it could be? When DW1 and DW2 were accused in the case and they were present before the court, how this can be said that DW1 and DW2 were not present. Therefore, in the presence of the accused Omveer Singh and Sahdev they could have very well been cross-examined by the prosecution and there was no occasion for the court to draw an adverse inference against the defence for the absence of the defence witnesses (DW1 and DW2 ). Thus, in my opinion the impugned order is improper and is liable to be set aside. The revision is allowed and the order dated 20. 11. 2008 is set aside. The trial court is directed to allow the defence to produce DW1 and DW2 for cross-examination by the prosecution. .