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Madhya Pradesh High Court · body

2008 DIGILAW 1036 (MP)

Sewa Ram v. State of M. P.

2008-08-18

N.K.MODY

body2008
ORDER 1. Being aggrieved by the order dated 11.2.2008 passed by Additional Sessions Judge, Mandsaur in ST No. 47/06, whereby the application filed by the petitioner u/s 311 CrPC for further cross-examination of PW 3 Khushbu was dismissed, the present petition has been filed. 2. Short facts of the case are that petitioner was prosecuted for an offence punishable u/s 302 IPC. Case of the prosecution was that petitioner killed his wife Manju on 24.4.2006 by putting her on fire. After filing of Challan petitioner was charge-sheeted and the case was fixed for recording of evidence. PW 3 Khushbu minor daughter of petitioner was examined as eye witness. Thereafter an application was filed u/s 311 CrPC, wherein it was alleged that previously counsel for the petitioner was Mr. Oinesh Prajapati who could not ask number of relevant questions in cross-examination, which goes to the route of the case. It was alleged that later on petitioner engaged Mr. Habib Khan, advocate and in the application it was prayed that petitioner be permitted to further cross-examination on PW 3 Khushbu. 3. The application was opposed by the respondent on various grounds including on the ground that PW 3 Khushbu is none else but the daughter of the petitioner, therefore, with a malafide intention this application has been filed. It was prayed that the application be dismissed. 4. After hearing the counsel for the parties learned trial Court dismissed the application, against which the present petition has been filed. 5. Mr. Sanjay Sharma, learned counsel for petitioner argued at length and submits that learned Court below committed error in dismissing the application filed by the petitioner. It is submitted that for an offence punishable u/s 302 IPC capital punishment is prescribed, therefore, all the opportunities should be given to the petitioner, so that petitioner should not have a feeling that petitioner could not get full opportunity to defend himself. Learned counsel further submits that on 4.10.2007 petitioner engaged Mr. Habib Khan, renowned advocate of the town and thereafter immediately on that very day the application has been filed, wherein it was prayed that petitioner be permitted for further cross-examination on PW 3 Khushbu. Learned counsel further submits that on 4.10.2007 petitioner engaged Mr. Habib Khan, renowned advocate of the town and thereafter immediately on that very day the application has been filed, wherein it was prayed that petitioner be permitted for further cross-examination on PW 3 Khushbu. Learned counsel placed reliance on a decision of this Court passed in Cr.R. No. 830/08 (Ramesh S/o Hurji v. State of M.P.) decided on 4.8.2008, wherein in the interest of justice opportunity to further cross-examination was given, keeping in view the law laid down by this Court in the matter of Santosh Khare v. State of M.P., reported in 2006 (II) MPWN SN 66. 6. Learned counsel further submits that it will not affect the case of the prosecution in any manner. It is submitted that petitioner is in jail and in the interest of justice one more opportunity ought to have been given to the petitioner for further cross-examine Khushbu. 7. Learned counsel for respondent submits that the application filed by the petitioner is full malafide. It is submitted that PW 3 Khushbu was aged six years only at the time of incident, who has been cross-examined at length. Learned counsel submits that in the facts and circumstances of the case the application filed by the petitioner deserves to be dismissed. 8. Section 311 of CrPC reads as under: "Power to summon material witness, or examine person present -Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though no~ summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case." 9. For granting or refusing the permission, each case has to be examined on its own merits. In the present case the case of the prosecution is that the petitioner kept on fire deceased Manju, who was no else but wife of the petitioner. For granting or refusing the permission, each case has to be examined on its own merits. In the present case the case of the prosecution is that the petitioner kept on fire deceased Manju, who was no else but wife of the petitioner. Right from beginning the case of the petitioner was that Khushbu aged six years was sole eyewitness of the incident, who was examined on 7.3.2007 and has bravely answered the question put to her by the counsel for the parties and also successfully faced the cross-examination which was made on behalf of petitioner at length. Thereafter number of witnesses has been examined by the prosecution. Total witnesses which have been examined are nine in numbers, thereafter on 4.10.2007 an application was filed, wherein the permission is sought for cross-examination. No reason has been assigned by the petitioner that why the question relating to location of the house and presence of other persons at the time of incident, could not be asked to Khushbu at the time when she was in witness box. 10. Keeping in view the fact that the only child witness Khushbu has come in witness box as eyewitness and the fact that the application was filed after a period of six months of completion of cross-examination of Khushbu, this Court is of the view that no sufficient ground is made out for permitting the petitioner for further cross-examination of PW 3 Khushbu. This Court is also of the view that no illegality has been committed by the learned Court below in dismissing the application. 11. In view of this, petition stands dismissed.