LAWS(BOM)-2023-6-637

STATE OF MAHARASHTRA Vs. RAJU

Decided On June 19, 2023
STATE OF MAHARASHTRA Appellant
V/S
RAJU Respondents

JUDGEMENT

(1.) Before commencement of the proceedings, learned counsel appearing for the convict has applied to this Court for recording additional evidence in the form of permitting the accused to cross-examine PW-13 - Vilas Shankarrao Wandile, Police Inspector (Now retired), PW-15 - Anjum Dilawar Naikwade, Nodal Officer and PW-16 - Tushar Vishnu Pawar, Assistant Chemical Analyzer.

(2.) It is submitted that the Trial Court has not given proper opportunity to the accused to cross-examine these witnesses which resulted into failure of justice. It is submitted that the Trial Court has convicted the accused for the offence punishable under Sec. 302 of the Indian Penal Code and awarded death penalty. According to the applicant, the Judgment and order of conviction and imposition of capital punishment vitiates only on the ground of denial of fair trial.

(3.) On facts, we have been taken through the evidence of PW-13 - Vilas Wandile. It reveals that Advocate Shri Samundre for the accused was absent on the date of recording evidence of said witness. Hence, the matter was adjourned on next date. On the following day, Defence Advocate Shri Samundre was again absent. Hence, on the request of Court, accused has cross- examined the witnesses obviously in four lines. Then we have been taken through the evidence of PW-15 - Anjum Naikwade. The defence Advocate Shri Samundre was also absent on the date of recording of his evidence. Hence, the accused appears to have cross-examined him which is cryptic one. PW-16 - Tushar Pawar was examined on 28/09/2022. However, his advocate was absent and accused has refused to cross-examine. There was no denial that there was no effective cross-examination of these three witnesses namely; PW-13 - Vilas Wandile, PW15 - Anjum Naikwade and PW-16 - Tushar Pawar and therefore, there was urge for recall in terms of Sec. 367 r/w Sec. 391 of the Code.