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2014 DIGILAW 892 (MP)

State of M. P. v. Vishnu

2014-07-25

T.K.KAUSHAL

body2014
ORDER 1. Present revision petition is directed against order dated 30.3.2007 passed by Additional Sessions Judge, Burhanpur in Criminal Appeal No.40/2007, dismissing the appeal against the judgment dated 29.8.2006 of JMFC Burhanpur in Regular Criminal Case No.807/2007 on the ground of limitation, by which respondents have been acquitted of the charge under section 325 of IPC. 2. Heard. 3. Record perused. 4. On 1.6.1995, respondents caused grievous hurt to Ramesh (PW1).On 12.7.1999, in trial Court, statement of Ramesh (PW1) was recorded and he was discharge after cross. It is pertinent to note that on 12.7.1999, no counsel appeared along with the respondents/accused persons. After completing the prosecution evidence, vide judgment dated 19.7.2005, respondents have been convicted under section 325 of IPC and have been sentenced to 6 months R.I. 5. Aforesaid judgment was challenged by respondnets saying that they did not cross examine the injured hence judgment of conviction was set aside and matter was remanded to decide afresh for cross examination of Ramesh (PW1). In the meanwhile, Ramesh (PW1) expired. Respondents did not get the opportunity of cross examination of him. Hence vide judgment dated 29.8.2006, trial Court acquitted the respondents observing that statement of injured without cross examination is nothing. Vide impugned order, appeal against acquittal was dismissed because it was filed with a delay of more than a month, without any sufficient cause. 6. It is true that on 12.7.1999, in trial Court, statement of Ramesh (PW1) was recorded but no counsel was available for them on that day and personally accused persons did not ask any question in cross examination. It is a serious lapse on the part of the concerned judicial officer that order sheet reflects that chief examination, cross examination, re-examination everything was done whereas on witness sheet, except chief examination, nothing was asked from the witness, by way of cross examination or by way of re-examination whatsoever. 7. It was a mischief or it was a negligence is not the main subject matter of this petition but question remains the same whether such statement can be used against the accused on whom no cross examination has been done either by them or by counsel on their behalf. 8. In view of the facts and circumstances of present case, such statement cannot be used. True it is that it was a lapse on the part of the trial Court. 8. In view of the facts and circumstances of present case, such statement cannot be used. True it is that it was a lapse on the part of the trial Court. A counsel should have been arranged for cross examination. Mischief of respondents/accused also cannot be ruled out because they never made a prayer for providing opportunity for cross examination on injured, prior to the earlier judgment of conviction. But this point was raised by them in appeal and they succeeded to get the case remanded for cross examination and by that time, by chance, witness was no more. 9. Considering the aforesaid, there appears no error in judgment of the trial Court acquitting the respondents because injured was not cross examined by them or by their counsel. In such a situation, efforts of State by assailing the acquittal would be a futile exercise. This Court does not approve working of trial Court during recording of evidence of injured but at the same time, no useful would be served to continue hearing against order of acquittal. Clock cannot be reversed. Conviction cannot be based on chief examination alone. Order of acquittal has rightly been affirmed. 10. Petition is dismissed. ..................