SANJAY KUMAR AND ANOTHER Vs. STATE OF J&K

JUDGEMENT

(1.) In the trial for offence under Sections 376, 341 and 212 R.P.C. arising in FIR No.43/2016 of Police Station, Khour, the trial court recorded statement of PW-1, ShakuntlaDevi,the mother of the victim, in her chief-examination on 30. 09. 2016. Hercross-examination, however, was deferred as defence counsel was not present on that day and the case was adjourned to 18. 10. 2016. On 18.10.2016 the defence counsel moved an application seeking permission of the trial court to permit him to cross-examine PWs 1 to 6 after thechief-examination of all of them is recorded on the ground that all of them are members of the same family, they have been cited as important witnesses and the line of defence shall get exposed in case they are cross-examined one by one. This application was filed under Section 272 (2) of the Code of Criminal Procedure (for short the Code). The trial court dismissed this application on the same day primarily taking the view that the witness is a lady who has to come from far-flung place so deferring her statement as desired by the defencecounsel will amount to persecution of the witness.

(2.) In additionthetrial court observed that the contention that PWs 1 to 6 belong to the same family is not supported by cogent proof and that it was very difficult to admit that defence of the accused will be disclosed by cross examining PW-1. The learned trial court, while impliedly accepting that PW1could be a material witness as the victim might have narratedthe incident to her,however, tookthe view that adjournment forcross-examination of the witness in a criminal case will give wrong signal to the society and will also affect the trial of the case and the witnesses produced by the prosecution may also be subjected to undue harassment. The trial court relied upon the Supreme Court judgments in N.G.Dastane vs. Shrikant S. Shivde, (2001) AIR SC 2028and Mohd. Khalid vs. State of West Bengal, (2002) 7 SCC 334 and thus, rejected the prayer of the defence and adjourned the case for recording the cross-examination of PW-1. Order dated 18. 10. 2016 passed by the trial court is impugned by the petitioner (accused) in this revision petition.

(3.) Learned counsel for the petitioner submitted thatSection 272 (2) of the Codeconfers a valuable right on the defence to seek deferment of crossexamination of material prosecution witnesses till examination in chief of all of them is recorded. This provides a safeguard to the accusedby not disclosing the line of defence by cross examining the prosecution witnesses one by one and thereby incurring the risk of giving chance tothe remaining prosecution witness(es) to fill up the lacunaein prosecution case, as they may emerge in the cross-examination of a witness.