DEVNARAYAN Vs. STATE OF M.P.

JUDGEMENT

(1.) The applicant has preferred this petition under Section 482 of Code of Criminal Procedure, 1973 (for short 'the Code') against order dated 20/12/2018 passed by Third Additional Sessions Judge, Ujjain in Special S.T. No. 291/2015, whereby the application filed on behalf of the applicant/accused under Section 311 of the Cr.P.C. for recalling the witness has been rejected.

(2.) The facts giving rise to this petition are that applicant is facing trial for offence under Sections 120(B), 326(A)/34, 326(B)/34 and 324/34 of the IPC. On 09/10/2018, prosecution witnesses Rahul Sharma (PW 6), Ujjawal Dhanak (PW 7) and Mahendra Saraswal (PW 8) were appeared in the Court for recording their evidence. On the aforesaid date his counsel was not appeared before the trial Court. It is alleged that Court Munishi-Anil Kumar (No. 112) informed the counsel of the applicant on telephone regarding the appearance of the aforesaid witnesses, however, applicant's counsel denied for the cross- examination of the aforesaid witnesses. After cross-examined by the co-accused-Jitendra and his counsel, these witnesses were discharged and applicant's right to cross-examine the aforesaid witnesses was closed on the aforesaid date. Applicant/accused moved an application under Section 311 of the Cr.P.C. for recalling Rahul Sharma (PW 6), Ujjawal Dhanak (PW 7) and Mahendra Saraswal (PW 8) to put his defence in proper manner. The trial Court after considering the facts and circumstances of the case and the ground for recalling the witnesses, rejected the application. Being aggrieved with the impugned order, applicant has filed the present petition.

(3.) Learned counsel for the applicant submits that Ujjawal Dhanak (PW 7) and Mahendra Saraswal (PW 8) have not stated anything against the applicant, therefore, now he does not want to recall these witnesses for their cross-examination. It is also submitted that due to non-appearance of his counsel on 09/10/2018 before the trial Court, prosecution witness Rahul Sharma (PW 6) was not cross-examined by him and the trial Court has closed his right to cross-examine the aforesaid witness on 20/12/2018, due to which his right of defence will seriously prejudice. Hence, he be permitted to recall Rahul Sharma (PW 6) for cross-examination.