T R NARASIMHULU Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The facts leading to the filing of this petition are that the petitioner-accused was charged of offence under Section 304-A of I.P.C. and was under trial before the III Additional Munsif Magistrate, Tirupathi in C.C.No. 222 of 1990. The trial was completed on 20-12-1994 and the petitioner was convicted under Section 304-A IPC and also under Section 252 of Cr.P.C. He was sentenced to imprisonment for one year. Against this order of conviction and sentence he filed an appeal before the learned Sessions Judge being Crl.A.No. 20/95 which was decided by the III Additional Sessions Judge, Chittoor at Tirupathi on 10-6-1997. The learned Trial Court had relied heavily on the evidence of P.W.I and convicted the petitioner. The case of the petitioner before the appellate Court was that he had not been given opportunity of cross-examining P.W.1 who was the pivotal witness in the case, therefore the conviction could not be sustained. I have seen from the records that P.W.I who was the eye-witness had been examined on 17-6-1992 partly and on 26-6-1992 his examination-in-chief was complete. The case was deferred for cross- examination of P.W.I on 26-6-1992, but the prosecution did not cause the presence of P.W.I till 21-7-1993 and the trial Court closed the evidence of P.W.I. But, the Magistrate had done all that was within his power to secure the presence of P.W.I and had issued even bailable warrants. Such bailable warrants also had to be executed by the Police concerned and they were not executed, therefore he closed the evidence of P.W.I on 21-7-1993. It appears that the learned Sessions Judge agreed with the contentions of the petitioner that he has been prejudiced as P.W.I who was the material witness in the case was not cross-examined by him and it was not due to the fault of the petitioner that P.W.I was not cross-examined. It was the fault of the prosecution itself not to produce P.W.I for the purpose of cross-examination. In any case, the petitioner's case is that P.W.1's evidence given by him in the examination-in-chief could not be read against him in the absence of having given him a chance to cross-examine the said witness. The learned Sessions Judge appears to have agreed with this, but remanded the case in terms of Section 391 of Cr.P.C. to the Trial Court for securing the presence of the witness and allowing the petitioner to cross-examine. This order of Sessions Judge has been challenged in this petition.

(2.) I have heard the learned Counsel for the parties in detail.

(3.) A reference has been made to several judgments of the Supreme Court and also of this Court. The Courts are empowered to get additional evidence in order to do complete justice in the matter. But, such orders cannot be passed if an attempt is sought to be made to fill up the lacunae in the cases. This is the settled position of law. Seeing in the light of this settled position of law, I find that the course adopted by the learned Sessions Judge was not only illegal but unfair also. The witness has been examined in the year 1992. It will be not fair to direct the accused to cross-examine the witness on the basis of the statement he made in the year 1992 as no witness will be in a position to explain in the cross-examination the interpretations to his statement made in the year 1992. When a witness is examined the law presumes that the witness is examined and cross-examined continuously. If a witness is examined on a particular day and is being cross-examined after five years, in my view prejudice is bound to be caused either against the prosecution or against the accused.