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2013 DIGILAW 434 (PAT)

Binod Rai v. State Of Bihar

2013-04-02

KISHORE K.MANDAL

body2013
ORDER Petitioner is facing charge punishable under diverse sections of the Peal Code including 376 and 511. The case was lodged in December, 2012. The trial thereof was taken up in February, 2012 when witnesses on behalf of the prosecution were examined. The prosecutrix (P.W.1) was examined on 9.2.2012. She could not be cross-examined and was discharged. Thereafter, two other witnesses were also examined on behalf of the prosecution. An application dated 9.8.2012 at this stage was filed on behalf of the prosecution to recall P.W.1 for her cross-examination. The same was rejected by learned trial judge vide order dated 04.02.2013 passed in S.T.No.143/2008 which has been impugned in this application. 2. Learned counsel for the petitioner submits that the prosecutrix could not be examined on account of non availability of the counsel who was to cross-examine on behalf the defence. Immediately after examination of two following witnesses, an application was filed for recall of P.W.1 which has been rejected by learned trial court. Learned counsel submits that, in the interest of justice as also a fair trial, the defence be given at least one opportunity to cross-examine the prosecutrix in view of the statements made by her in her examination in-chief which is divergent from the allegations made by her in the FIR. The petitioner is ready and willing to deposit the expenses to be borne in recall of P.W.1. 3. I have heard the parties and perused the material on record. 4. The trial is of the year 2008. The first P.W., the informant, was produced by the prosecution on 9.02.2012 and was examined. It further appears that thereafter two more witnesses were also examined by the prosecution. Immediately thereafter the application was filed for recall of P.W.1 since she could not be cross-examined by the prosecution. 5. Having regard to the above, in the interest of justice, this Court would grant the defence an opportunity to cross-examine the prosecutrix (P.W.1) which is a valuable right of the defence. 6. Fairness in trial is a sine qua non. There may be diverse reasons for not cross-examining the said witness when she had appeared for her examination in chief. Time has not much lost. The prosecution may have to examine some more witnesses in the case. 7. Considering this aspect of the matter, this Court is persuaded to allow the present application by the following order:- 8. There may be diverse reasons for not cross-examining the said witness when she had appeared for her examination in chief. Time has not much lost. The prosecution may have to examine some more witnesses in the case. 7. Considering this aspect of the matter, this Court is persuaded to allow the present application by the following order:- 8. The petitioner shall deposit a sum of Rs. 1000/- (rupees one thousand) with the trial court within ten days and seek recall of P.W.1. The learned trial court shall thereafter take steps for summoning the prosecutrix (P.W.1) for her cross-examination. The day she appears in connection with the said case, the defence shall utilize the time for her cross- examination. In no case, any adjournment on any account for her cross examination shall be granted by the learned trial court. The amount so deposited shall be made over to the prosecutrix (P.W.1) on her appearance for cross-examination. 9. Let this order be communicated by fax at the cost of the petitioner.