NISHAR Vs. STATE OF U P

JUDGEMENT

(1.) R. K. Rastogi, J. This is an application filed under Section 482, Cr. P. C. for permission of cross-examination of P. W. 3 Harishanker in S. T. No. 185 of 1999, State v. Nishar and others, pending before the Additional Sessions Judge/ F. T. C. No. 2 Kanpur Dehat.

(2.) THE facts relevant for dismissal of the application are that the aforesaid sessions trial is pending against the accused applicants under Sections 376, 511 and 506, I. P. C. before Additional Sessions Judge/fast Track Court No. 2, Kanpur Dehat and P. W. 3 Harishanker was produced by the prosecution on 13-8-2004. His statement-in-chief was recorded by the Court before lunch and since the Counsel for the accused was not present at that time, the case was ordered to put up after lunch. Learned Counsel appeared after lunch and moved an application for adjournment. That application was rejected by the Court and the Counsel for the accused was directed to cross-examine the witness. Learned Counsel for the accused stated that he was not in position to cross-examine the witness on that date. THEn learned Presiding Officer of the Court discharged the witness with this observation that learned Counsel for the accused did not want to cross-examine the witnesss. THE evidence of some other witnesses was recorded on subsequent dates fixed in the Session Trial and, thereafter, the accused moved an application on 8-8-2007 stating that on 13-8-2004 learned Counsel for the accused could not cross- examine the witness due to illness, and so an opportu nity should be given to him to cross-examine the witness. This application was rejected by the trial Court observing that in the adjournment application moved on 13-8-2004 it was stated that learned Counsel for the accused was busy in argu ments in another Court in a case under Section 396, 412, I. P. C. , State v. Ashok Sharma and others and so the witness could not be cross-examined, but in the application moved on 8-8-2007 it was stated that the Counsel was ill on that date and so the witness could not be cross-examined. It was also observed that the application had been moved after much delay with a view to prolong the hearing of the case and so it was liable to be rejected.

(3.) LEARNED trial Court has also observed in its order that the application had been moved after much delay. However, it was in the interest of justice to permit the accused to cross-examine the witness, as observed above, and so the prayer could not be declined on the ground of delay.