RAM AVADH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD the learned counsel for the revisionist, learned A.G.A. and perused the judgment in question. It is submitted that the revisionist is facing trial under Section 302 I.P.C. and Sections 3/25 and 4/25 Arms Act and Section 3 (1) U.P. Gangster Act arising out of Case Crime No.6 of 2007, Police Station Musafirkhana, District Sultanpur. It is said that on 31.03.2009 the case was fixed for evidence. On that day examination-in-chief of PW-6 was recorded as mentioned in the order-sheet dated 31.03.2009. The accused had come from jail but his counsel was not present and therefore cross examination was not conducted. The evidence was therefore closed and 08.04.2009 was fixed for remaining evidence and the statement under Section 313 Cr.P.C. On 08.04.2009 an application was moved by the applicant/revisionist but no order was passed by the trial court and 17.04.2009 was fixed for recording statement under Section 313 Cr.P.C. It is said that PW-6 is an scribe of the F.I.R. who is an important witness. As the matter is very short this memo of revision is being taken up for admission/hearing in one go. It is true that the year of the crime is 2007 but the case is not so old. From the perusal of the order dated 31.03.2009 it appears that on that day examination-in-chief of PW-6 was recorded. The revisionist-accused is in jail from where he had come on that day. The co-accused is also in jail. Out of them only one has filed this revision. It appears that on that day probably their counsel did not care to appear before the court to conduct the cross-examination of PW-6 and therefore it was immediately closed and 08.04.2009 was fixed for remaining evidence. It is not ascertainable as to whether on 08.04.2009 any remaining evidence was produced or not but it has been averred that on that day next date i.e. 17.04.2009 was fixed for recording statement under Section 313 Cr.P.C. It has been further averred that on 08.04.2009 an application was moved (Annexure-1) by the revisionist, Ram Avadh saying that though he had engaged a counsel but on previous occasion i.e. 31.03.2009 he had gone out of station due to some urgent work and as such could not appear and the revisionist was not in a position to engage another counsel on that very day because he is in jail. It was further mentioned in the application that he himself could not conduct any cross-examination because he was not prepared with the case. Lastly it was said that now he himself is ready to conduct the cross-examination for which an opportunity may be given. But no order whatsoever was passed on this application. Learned A.G.A. has no instructions in this regard. It is an old saying that Justice should not only be done but it should appear to have been done. The revisionist is admittedly behind the bars. Though he had engaged a private counsel but being out of station he could not conduct the cross-examination on 31.03.2009. On the next date i.e. on 08.04.2009 an application (Annexure-1) was also moved to that effect but it is said that no order was passed and finally after closing of the evidence the case was fixed for recording the statement under Section 313 Cr.P.C. The case is not very old. The applicant should get an opportunity to cross examine PW-6 who is an important witness and he should not be punished for no fault on his part. Therefore in the interest of Justice the revision is allowed and the order in question is set aside. The court below shall call upon PW- 6 for cross-examination but no adjournment would be granted on that day if PW-6 is in attendance. Thereafter the case shall proceed in accordance with law. As the case is said to be listed tomorrow, let a certified copy of the order be issued forthwith to enable the learned counsel for the revisionist to file it before the court below for further necessary action.