DHURBA CHARAN DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) LEARNED Additional Government Advocate accepts notice on behalf of the State. A copy of the petition is served on her.

(2.) THOUGH the matter has been listed for admission, on the consent of the learned counsel for the parties, the same is taken up for final disposal at the stage of admission. Heard the learned counsel for the parties. The petitioner is facing his trial for offence under Section 302/498 -A.I.P.C. in S.T. Case No.28 of 2000 of the Court of learned Addl. Sessions Judge, Fast Track Court -III, Cuttack. During the course of trial he filed an application before the said Court to recall P.Ws. 1 and 4 for further cross -examination on the ground that learned Senior counsel was not present on the date of examination of those witnesses and that learned counsel conducting the case on those dates had no proper instruction from the accused. The petition was resisted by the prosecution on the plea that the accused -petitioner was present in the Court and cross -examination of P.Ws. 1 and 4 was undertaken by a fairy Senior Counsel. Learned Addl. Sessions Judge, Fast Track Court -III, Cuttack rejected the prayer of the petitioner observing that P.Ws.1 and 4 have already been cross -examined at length and that there was no material on record to indicate that those witnesses were cross -examined by Junior counsel or that the defence counsel had no proper instruction from the petitioner. Aggrieved, the petitioner has filed the present application under Section 482, Cr.P.C. praying for quashing the aforesaid order dated 17.1.2005 of the learned Addl. Sessions Judge, Fast Track Court -III Cuttack. Mr. B. C. Patry, learned counsel for the petitioner submits that P.Ws. 1 is a child witness and is the only eye witness to the occurrence and it is vital for the defence to ascertain as to where exactly the witness was when the alleged murder took place. Mr. Patri submits that the petitioner is facing trial for the offence of murder and unless proper cross -examination of the eye -witnesses is allowed, he is likely to be prejudiced. Mr. Patri also submits that technicalities should not be given undue importance while trying an accused for serious offences.

(3.) A close reading of the impugned order and the copy of the petition which had been filed by the petitioner for recall of P.Ws. 1 and 4 show that the P.W.4 is the informant and P.W.1 is the eye -witness and they are most relevant witnesses. Unless proper cross -examination of these witnesses is made, the accused is likely to be prejudiced. Time and again the Apex Court and this Court have observed that in a Criminal trial the prime object should be the proper adjudication of a case and dispensation of justice and that technicalities should not be given under importance. Here is a case, where the petitioner is in custody and is facing his trial as U.T.P. He made the prayer for recall of P.Ws.1 and 4 for further cross -examination. If the accused was not serious about the prayer or his desire for further cross -examination P.Ws.1 and 4 was not bona fide, then he could not have made the prayers as recalling the witnesses would prolong his stay in custody as UTP. In the case of Gangadhar Jena and five others v. State of Orissa* (2004) 29 OCR 126 this Court in an identifical situation ruled that recall of witnesses should be favourably considered when an accused is in custody and making prayer for recall of particular witness. No doubt in the present case the petitioner had not indicated the exact question which he wanted to put to P.W.1 and 4 but Mr. Patri, learned counsel for the petitioner submits that the defence wants to put only one question to P.W.1 about his exact place of presence at the time of the alleged murder as the answer to the said question is vital for proper adjudication of the case. Mr. Patri also submits that if P.W. 1 is recalled for facing further cross -examination, the petitioner will not insist upon the recall of P.W. 4 for further cross -examination. In view of the submission of the learned Counsel for the petitioner and in view of the fact that the petitioner who is in custody is making a sincere prayer. I feel that P.W.1 should be recalled for further cross -examination.