NITESH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant-miscellaneous petition has been filed by the petitioner challenging the order dated 29.11.2010 passed by the Additional Sessions Judge (Fast Track) No. 1, Jodhpur in Sessions Case No. 52/2008, whereby an application filed by the prosecution under Section 311, Cr. PC. has been accepted. The facts giving rise to the instant petition are that the petitioner is facing trial in the Court of the Additional Sessions Judge (Fast Track) No. 1, Jodhpur for the offences under Sections 306 and 498A, IPC. After framing of the charges, the prosecution initiated its evidence and the examination-in-chief of witnesses PW 1 Jagdish Chandra, PW 2 Tara Devi and PW 4 Devi Lal, who are said to be material witnesses of the prosecution, were recorded. The examination-in-chief of PW 1 Jagdish Chandra was recorded' on 29.9.2008 and the examination-in-chief of witnesses PW 2 Tara Devi and PW 4 Devi Lal was recorded on 18.10.2008 and their cross-examination was kept reserved. It appears that thereafter the trial proceeded further and the statements of other witnesses-continued to be recorded but some how or other, three witnesses referred above were not called back for cross-examination either by the counsel for the complainant or the Court, nor did the counsel for the accused make any request for calling three witnesses for cross-examination. Ultimately, the prosecution evidence was closed on 09.8.2010 and thereafter the statement of the accused was recorded under Section 313, Cr. P.C. and the accused, upon being called upon to tender defence evidence, examined six witnesses in his defence. The file was thereafter kept for final arguments on 09.11.2010. On that day the learned Special Public Prosecutor filed an application for recalling of the witnesses PW 1 Jagdish Chandra, PW 2 Tara Devi and PW 4 Devi Lal so that their cross-examination could be completed by the accused. The said application filed by the learned Special Public Prosecutor has been accepted by the order dated 29.11.2010, which is the subject-matter of challenge by the instant miscellaneous petition.

(2.) Assailing the impugned order, learned, counsel for the petitioner submitted that in this case the witnesses cannot be called for cross-examination under Section 311, Cr. P.C. as this section does not give any permission for the witnesses to be recalled for cross-examination. It has further been submitted that the stage of Section 232, Cr. PC had been crossed in the trial and thereafter no witness could be called for cross-examination as the stage of recording the evidence had already been completed. He further submitted that it was the lacuna of the prosecution that the aforesaid three witnesses, viz. PW 1 Jagdish Chandra, PW 2 Tara Devi and PW 4 Devi Lal, despite numerous opportunities being granted, were not kept before the court below for cross-examination and thus, the cross-examination could not be now allowed for filling-up the lacunae of the prosecution. It has further been submitted that there is no finding of the learned trial court that the evidence of the witnesses sought to be recalled for the purpose of being cross-examined was essential for the just decision of the case and, thus, it is submitted that the impugned order, being absolutely an abuse of the process of the court and not being warranted for securing the ends of justice, deserves to be quashed. Learned counsel for the accused-petitioner also argued that the application was filed by the prosecution only after the arguments were advanced on behalf of the accused and thus the defence of the accused would be prejudiced greatly in calling of the witnesses for cross-examination now. Reliance in support of the arguments has been placed on the following decisions:-

(3.) The learned Public Prosecutor and the counsel for the complainant, on the other hand, submitted that the cross-examination of the witnesses was kept reserved on the prayer of the counsel for the accused and thereafter the witnesses were never summoned by the court for cross-examination, nor did the counsel for the accused make any prayer for calling of these witnesses. Thus, it was not the fault of the prosecution that the witnesses could not be called for cross-examination. Learned counsel for the complainant submitted that the trial Judge has held that the three witnesses, who were called for cross-examination, are important witnesses in relation to the allegation of the prosecution that the deceased was led to commit suicide because of the abetment given by the accused-petitioner and thus the cross-examination of these witnesses was absolutely essential for unfurling the true story of the prosecution and if the witnesses are not subjected to cross-examination by the accused then their evidence would be taken out of consideration as their evidence could not be read in the trial. Thus, it is submitted that the order of the learned trial Judge calls for no interference by this Court.