RAMDAS BHERUDAS Vs. BHERUDAS NARSINGHDAS

JUDGEMENT

(1.) The petitioner was tried on the complaint of one Bherudas s/o Narsinghdas on charges under Ss. 417 and 498, Penal Code and sentenced on conviction of both the offences to a fine of Rs. 50 and six months rigorous imprisonment in default. He has come up in revision and his learned counsel contends that the cross-examination of the witnesses for the prosecution was wrongly shut out and that even on the evidence as it stands, no conviction can be founded.

(2.) The complainant's case as stated in the complaint is that he and his wife Musammat Ganga were invited by the accused at the Nukta of his mother. There the accused prevailed on the complainant to let Ganga stay on for a week as his wife was in child-bed. The complainant went after a week to fetch Ganga but she was not there and on inquiry the accused told him that she had been sent to Dhar with one Goverdhan. Gangabai's mother lives with one Sunderlal, head Constable Police, at Dhar. Sunderlal told the complainant that the accused had left Gangabai with him for giving her away in Natra. The plea of the accused is that Gangabai returned, with her brother who had also come for the Nukta.

(3.) After the charge was framed the complainant was called upon to pay process for securing the attendance of his witnesses for cross-examination; and on his failure to do so, the learned Magistrate passed an order on 17-3-48 " (Sic)". The learned Magistrate should have realised that he was by this order punishing the accused by deprivation of his right of cross-examination for the sin of the complainant. It is settled law that such a right is indefeasible, and omission to give the accused the benefit of this right vitiates the proceedings. I would refer in this connection to cases reported in Zamunia V/s. Ramtahal, 27 Cal 370 : (4 CWN 469); Inder Rai V/s. Emperor, 37 Cal 236 : (11 Cri LJ 128); Queen Empress V/s. Nasarvanji, 2 Bom LR 542; Ramchandra Modak V/s. Emperor, 1926 AIR(Pat) 214 ; Harkishen Das V/s. Emperor, 1937 AIR(All) 127 ; Chint Ram V/s. Emperor, 1931 AIR(Lah) 186 and Loclcley V/s. Emperor,1920 AIR(Mad) 201 In this view the learned Magistrate erred in cancelling the cross-examination and the true consequence of the cancellation is to render the evidence incomplete and the conviction must be set aside.