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2013 DIGILAW 1353 (RAJ)

Makkhan Lal v. State of Rajasthan

2013-07-25

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant misc. petition has been preferred by the petitioner assailing the order dated 4.5.2012 passed by the learned Additional Sessions Judge No. 2, Sriganganagar in Appeal No. 45/2011, whereby the application filed by the petitioner under Section 391 Cr.P.C. for recalling the complainant in evidence and for being permitted to confront him with the original compromise has been rejected. 2. Learned counsel for the petitioner drew attention of this Court to the cross-examination of the complainant, which was conducted on behalf of the petitioner at the trial. He contends that at the time of the cross-examination, only the photostat copy of the compromise was available with the petitioner. He confronted the complainant with the photocopy on which, the complainant replied that he could give a proper reply to the questions in relation to compromise in the event of the original being shown to him. Learned counsel submits that the complainant did not deny about the execution of such compromise but rather feigned ignorance of the same. Learned counsel thus submits that the compromise is a valuable defence document which was traced out by the accused subsequent to the decision of trial. If the same is not taken on record, then the defence of the accused will be seriously prejudiced. Learned counsel thus submits that the appellate Court be directed to permit the petitioner to confront the complainant with the original agreement. 3. Learned counsel appearing for the complainant respondent No. 2 has vehemently opposed the submissions advanced by the learned counsel for the petitioner. 4. Heard and considered the arguments advanced at the bar and perused the order impugned as well as the material available on the record. 5. From a perusal of the statement of the complainant respondent No. 2 recorded at the trial, it is apparent that when the complaint was shown the photostat copy of the compromise document, he specifically replied that he could give a proper reply only the original document being shown to him. Thus, the document itself was not specifically denied by the complainant. The only objection which was taken was regarding the original not being available. The accused claims to have subsequently laid hands on the original during the pendency of the appeal and filed the application in question with the original document requesting that 4he complainant be permitted to be confronted with the original compromise. The only objection which was taken was regarding the original not being available. The accused claims to have subsequently laid hands on the original during the pendency of the appeal and filed the application in question with the original document requesting that 4he complainant be permitted to be confronted with the original compromise. In this view of the matter, this Court is of the opinion that the original compromise document is a valuable defence available to the accused, which the accused was prevented from bringing on record of the trial because of its non-availability. Thereafter, the original is reported to have been traced out. Accordingly, the accused has a right to confront the complainant with the original compromise so that he can properly defend himself. 6. Resultantly, this Court feels that the appellate Court committed grave error in rejecting the application filed by the petitioner merely on the ground that the offence is not compoundable. What will be the effect of the compromise document on the veracity of the prosecution case can only be examined after the original document is permitted to be proved in evidence. 7. Therefore, the misc. petition deserves to be accepted and is hereby allowed. The order dated 4.5.2012 passed by the learned Additional Sessions Judge No. 2, Sriganganagar is quashed and now the appellate Court is directed to recall the complainant before it for further cross-examination and thereafter to permit the petitioner to confront the complainant with the compromise document. After such confrontation is done, the appellate Court shall proceed to hear the appeal and decide the same in accordance with law.The Misc. Petition is allowed in terms mentioned above. Stay petition is also disposed of.Petition allowed. *******