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2013 DIGILAW 2096 (BOM)

Tukaram Limbaji Londhe v. State of Maharashtra

2013-10-08

ABHAY M.THIPSAY

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JUDGMENT Rule. By consent, Rule made returnable forthwith. By consent, heard finally. 2. The petitioners are the accused in S.C. No. 90/2011 pending before the Court of Sessions, at Ambajogai. In the course of trial, one Balasaheb Yadav, Medical Superintendent attached to Gramin Hospital, Dharur came to be examined as the Prosecution Witness no.3. However, on that day, the learned advocate for the accused persons submitted that he was not in a position to cross examine the said witness. The learned Additional Sessions Judge, Ambajogai who is holding the trial, therefore, discharged the witness by observing that he was professional medical practitioner. This happened on 23.10.2012. Thereafter, the petitioners made an application for recalling of the said witness for cross examination and the learned Additional Sessions Judge, Ambajogai allowed the same on directing the accused persons to deposit an amount of Rs.500/- towards the costs of the travelling expenses etc. to be paid to the said witness. Accordingly, the witness who was recalled, actually came before the court on 10.4.2013. But this time also, the advocates for the accused persons applied for an adjournment. The learned Additional Sessions Judge observed that a number of advocates were appearing for the accused persons and that, the advocates for the accused persons had earlier also not cross-examined this witness and that, on that date i.e. on 10.4.2013 also, they were reluctant to cross examine the witness. He therefore rejected the application for adjournment and the witness was once again discharged. 3. Mr. Jadhav, the learned counsel for the petitioners submitted that the case against the accused persons is in respect of an offence punishable u/s 307 of the Indian Penal Code. He also stated that the attempt to commit murder is said to have been made by strangulation and that, therefore the evidence of the Medical Officer would be of great significance. He submits that, under these circumstances, an opportunity to cross examine the said witness needs to be given to the accused persons in the interest of justice. 4. As regards failure of the accused persons to cross examine the witness, Mr. Jadhav submits that the happenings were unfortunate and there was no deliberate attempt on the part of the accused persons, or their advocates, to delay the trial. 5. 4. As regards failure of the accused persons to cross examine the witness, Mr. Jadhav submits that the happenings were unfortunate and there was no deliberate attempt on the part of the accused persons, or their advocates, to delay the trial. 5. It appears that on 23.10.2012 advocate Shri A.K. Lomate who is appearing for the accused made an application for adjournment on the ground that his uncle had expired and that, therefore he was not in a position to cross examine the witness. Next Time, the same learned advocate applied for an adjournment on the ground of his own ill-health condition. 6. I have carefully considered the matter. 7. It must be kept in mind that considering that the allegation of attempt to commit murder is said to be by strangulating, evidence of the medical witness would be relevant and quite significant. It appears proper therefore, that the accused persons should get an opportunity to cross examine the witness. 8. It is true that, it was within the discretion of the learned Additional Sessions Judge whether or not to grant a further opportunity to the accused persons to cross examine the witness, it cannot be stated that exercise of discretion as done by the learned Additional Sessions Judge is perverse; and though ordinary in this type of matters, this Court would not interfere in Writ Jurisdiction available to it, still, in this case, in order to do the substantial justice, interference by this Court seems to be necessary. It must be observed that the conduct which the learned Additional Sessions judge did not seem to approve was the' conduct of the advocates for the petitioners and not of the petitioners themselves. It does, at times, happen that due to certain personal difficulties, an advocate would be unwilling to go on with the trial of a case. The same appears to have happened in the present case. In my opinion the same should not affect the accused persons adversely, and therefore, they should be given one further opportunity to cross examine the said witness. Needless to say that, appropriate condition should be imposed upon the accused persons. 9. In the circumstances, it is directed that, on the petitioners depositing a sum of Rs.2,000/- (Rs. In my opinion the same should not affect the accused persons adversely, and therefore, they should be given one further opportunity to cross examine the said witness. Needless to say that, appropriate condition should be imposed upon the accused persons. 9. In the circumstances, it is directed that, on the petitioners depositing a sum of Rs.2,000/- (Rs. Two thousand) towards the costs to be paid to the said witness, the Trial Court shall recall the said witness for his cross examination on behalf of the petitioners and give one more opportunity to the accused persons to cross examine the said witness. The trial court shall, thereafter, proceed further with the trial in accordance with the law. 10. Petition is disposed of accordingly. Rule is made absolute in the aforesaid terms. 11. All concerned to act on an authenticated copy of this order. Ordered accordingly.