KALIDAS MAULINGKAR Vs. STATE OF GOA

JUDGEMENT

(1.) THE appellant/accused herein, Kalidas Maulingkar who is presently lodged at Central Jail, Aguada, Goa, has filed this Criminal Appeal, being aggrieved by the Judgment and Order dated 17-12-1998, in Sessions Case No. 3/98, whereby the appellant/accused came to be convicted by the learned Addl. Sessions Judge, Mapusa for the offence punishable under Section 304 (Part II) of Indian Penal Code.

(2.) BY the impugned Judgment and Order, the learned Addl. Sessions Judge, Mapusa convicted the appellant/accused and sentenced him to undergo Rigorous Imprisonment for 5 years and to pay fine of Rs. 500/-, in default, to undergo 2 months S. I. for the offence punishable under Section 304 (Part II) of Indian Penal Code.

(3.) HAVING heard the learned Advocate for the appellant and the learned Public Prosecutor and having gone through the original application, so also the order passed by the learned Addl. Sessions Judge, whereby the request of the accused for examining the defence witness came to be rejected solely on the ground that it came belatedly, it must be said that the said request ought to have been granted by the learned Addl. Sessions Judge in the interest of justice, even though such a request was not made by the accused during the course of his examination under Section 313 of the Code of Criminal Procedure, 1973 or immediately thereafter. Assuming that there was delay in making such a request, such a request should have been granted in the interest of justice, and to conduct a fair trial, especially when the accused had submitted in his application that non-examination of the defence witness would cause serious prejudice to his case. Fairness is the hallmark of any trial. By denying the opportunity to the appellant to examine his witness, this quality of fairness in trial itself came under cloud. Under these circumstances, following order is passed : The matter is remanded to the learned Addl. Sessions Judge, Mapusa. The learned Addl. Sessions Judge will record the evidence of the Defence Witnesses, if there are any, and will proceed in accordance with law. The appellant/accused is, hereby, permitted to examine defence witnesses. The matter to appear on the board of the learned Addl. Sessions Judge, Mapusa on 23rd November, 2000. Considering that the appellant is in Jail right from the date of his arrest, i. e. 30-10-97, the trial be concluded within a period of three months from the date of receipt of the R & P. In view of the above order, the criminal appeal is disposed of. The R. & P. be sent immediately to the lower Court along with writ. Order accordingly. .