ATUL GANESHRAO CHOUDHARI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. Heard finally by consent of counsel for the parties. Heard V.M. Deshpande, learned counsel for the petitioner and Mr. P.V. Bhoyar, learned Addl. P.P. for respondent-State. The grievance of the petitioner is very limited inasmuch as he has not been given an opportunity to cross-examine PW 9, the Medical Officer who had collected blood samples of the petitioner, prosecutrix and the child allegedly born out of the physical relationship between and petitioner and the prosecutrix.

(2.) I am told that DNA reports have been submitted in the trial Court and it is the case of prosecution that the DNA of blood sample of the child matches with the DNA of the blood sample of the petitioner. This is obviously strong evidence against the petitioner on which the prosecution relies. It is, therefore, imperative that the petitioner gets opportunity to cross-examine the witness. In fact, it was the duty of the Court to see that the witness is cross-examined so that the Court comes to a just and proper conclusion at the time of passing the judgment.

(3.) I have gone through the impugned order. In my considered opinion, the learned trial Court failed to realize that it is the duty not only of the parties to see that the trial goes on smoothly and all relevant evidence comes on record but, at the same time, it is duty of the Court also to see that the evidence necessary for just and proper decision of the case comes on record. The Court cannot ignore second part of Section 311 of Cr.P.C., which enjoins upon the Court that whenever the court feels that evidence of particular witness is necessary for just and proper decision of the case, the Court is under obligation to call or recall the witness, as the case may be. In the present case, it was the duty of the Court to see that PW 9 is cross-examined and the Court itself should have taken necessary steps to see that the witness is brought before the Court and is cross-examined on behalf of the petitioner. Since the petitioner himself has come forward and he wants to cross-examine the witness and is willing to bear the cost of the witness, I pass the following order: