CHINTAMANI SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) Order dated 22.05.2009 passed by the learned Sessions Judge, Keonjhar in S.T. Case No. 170 of 2005 by which he rejected the prayer of the petitioner (who is the accused therein) under Section 311 of the Code of Criminal Procedure, 1973 (here -in -after called 'the Code') for further cross -examination of P.W.1 and cross -examination of P.W.2, 3 and 5 is impugned in this application. The learned advocate for the petitioner declined to cross -examine PWs 2, 3 and 5. He also allegedly could not cross -examine P.W.1 effectively. Therefore, the aforementioned petition was filed on behalf of the accused -petitioner inter alia delineating the specific questions to be put to P.W.1 in further cross -examination.

(2.) HEARD from both sides. Learned advocate for the petitioner has contended that further cross -examination of P.W.1 is necessary and P.Ws.2, 3 and 5 have not at all been cross -examined. This being a Sessions Case involving offence under Section 302 I.P.C., if the witnesses are not cross -examined then it would cause grave prejudice to the petitioner and would result in failure of justice. Learned Additional Government Advocate has submitted that the accused -petitioner should not be allowed to take advantage of his own mischief and once having declined to cross -examine the witnesses should not be allowed to do so since if such an action is allowed each and every accused can hold up the trial indefinitely.

(3.) THE case involves offences under Sections 498 -A/304 -B/302/201/34 of I.P.C. and Section 4 of the Dowry Prohibition Act, 1961. If some witnesses are not at all examined it can cause grave prejudice to the defence. However, the fact remains that sometimes the defence succeeds in protracting the trial of the case by deliberately refusing to cross -examine the material witnesses and later seeking to cross -examine them under Section 311 of the Code. In the present case, no reason has been put forth in the petition as to why the witnesses (P.Ws.2, 3 and 5) were not examined at all by the defence though it has been mentioned in the petition that P.W.1 was cross -examined ineffectively since the senior conducting Counsel was not present. In view of the nature and gravity of offence, this Court feels that the evidence cross -examination of the aforesaid witnesses is essential to the just decision of the case.