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2005 DIGILAW 2873 (RAJ)

Chet Ram v. State of Rajasthan

2005-11-07

R.S.CHAUHAN

body2005
Judgment R.S. Chauhan, J.-Petitioner has challenged the order dated 30.03.2005 whereby his application moved under Section 311, CrPC for recalling the witnesses for the purpose of cross-examinations has been dismissed by the learned trial Court. 2. Mr. Praveen Balvada, learned Counsel for the petitioner submits that the petitioner is not only an illiterate but also a poor person, who has not been able to engage a Counsel to defend himself in the trial. He further states that the trial Court has not appointed anyone as an Amicus Curiae to plead the case of the petitioner. Since, no Counsel was present to represent the cause of the accused petitioner, therefore, no cross-examination could be done on behalf of the accused petitioner. Therefore, according to the learned Counsel for the petitioner, a grave injustice has been caused to the petitioner by dismissing the said application filed under Sections 311, CrPC. 3. On the other hand, learned Public Prosecutor has argued that the statements of the witnesses were recorded in the presence of the accused petitioner but the accused petitioner did not bother to cross-examine the witnesses. He further contends that the application filed under Section 311, CrPC has been moved only as a subterfudge to prolong and delay the trial. Therefore, he has supported the impugned Judgment . 4. We have heard the learned Counsels for the parties and perused the material on record. 5. Undoubtedly, the right to defend oneself in a criminal trial is a fundamental right which flows from Article 21 of the Constitution of India. After all, the accused person has a right to defend himself against the allegations levelled by the State. Both under the Constitution of India and also under Section 304, CrPC, the accused is entitled to a Counsel to defend himself at the expenses of the State. Therefore, the learned trial Court should have taken note of the fact that the accused petitioner does not have a Counsel to represent his cause before the trial Court. The trial Court should have appointed a Counsel of eminence to defend the poor accused. In case, an opportunity to cross-examine, the witnesses is not given to the petitioner, it would tantamount to condemning him unheard. It is, indeed, tried to state that no person can be condemned unheard. The trial Court should have appointed a Counsel of eminence to defend the poor accused. In case, an opportunity to cross-examine, the witnesses is not given to the petitioner, it would tantamount to condemning him unheard. It is, indeed, tried to state that no person can be condemned unheard. Further, it is a settled principle of law that justice should not only be done, but it must appear to be done. The accused petitioner has not only right to defend himself , but also has a right to be convinced that justice has been done to him. .6. Hence, in the interest of justice, we set aside the impugned order dated 30.03.2005 with the following directions: 1. Learned trial Court is directed to appoint a Counsel of eminence for defending the case of the petitioner immediately; 2. trial Court is further directed to recall the witnesses P.W. 2 Gulab Singh, P.W. 6 Sumer Singh, P.W. 7Hari Ram, P.W. 8 Veer Singh, P.W. 10 Devi Lal and P.W. 12 Maghar Singh so that they may be cross-examined by the Counsel for the petitioner; and 3. We direct the accused petitioner to cross-examine that aforesaid witnesses on the date, they are produced in the Court so that the trial may be completed at the earliest. 7. With the aforesaid directions, the revision petition is allowed.