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2016 DIGILAW 117 (RAJ)

Hanumana Ram v. State of Rajasthan

2016-01-19

SANDEEP MEHTA

body2016
JUDGMENT : SANDEEP MEHTA, J. Heard. 2. Issue notice. Learned Public Prosecutor accepts notice for the State. 3. The instant revision petition has been preferred by the petitioner accused being aggrieved of the order dated 21.12.2015 passed by the learned Additional Sessions Judge, Deedwana in Sessions Case No. 6/2015 whereby, the trial Judge, exercising the powers under Section 309(2)(C) of the Cr.P.C., dispensed with the cross-examination of the witness Bhanwar Lal (PW-5). 4. Facts in brief are that the petitioner is facing trial in the court below for the offence under Section 302 IPC amongst others. On 21.12.2015, three prosecution eyewitnesses were present before the court. One of them, being Birda Ram was examined in chief. At that stage, the counsel for the accused petitioner submitted an application under Section 231 Cr.P.C. and prayed that the examination-in-chief of all the witnesses be recorded first and thereafter, the accused be called upon to cross-examine them. The learned Public Prosecutor requested the trial court that all the three witnesses were present in the Court and that the accused was free to cross-examine them on the very same day. Therefore, the application submitted by the accused for deferring the statement of the witnesses be rejected. The trial court, after considering the arguments advanced by the counsel for the parties, held that since all the three witnesses namely Birda Ram, Nemaram and Bhanwar Lal were present in the court, the counsel for the accused could cross-examine them on the very same day one after the other. The court expressed that the counsel for the accused should cooperate in the matter for expeditious examination of the witnesses and thereafter, rejected the application for deferment filed by the accused. The cross-examination of the witness Birda Ram was dispensed with whereas, the statement of the witness Bhanwar Lal was recorded by the trial court on that very day. The petitioner accused has now approached this Court by way of the instant revision petition praying that the order dated 21.12.2015 passed by the learned trial court whereby, the cross-examination of the witness Birda Ram has been dispensed with, will cause serious prejudice to the accused petitioner's defence at the trial and thus, the said order may be modified suitably. 5. 5. Learned counsel for the petitioner requested that the petitioner be allowed one opportunity of cross-examining the witness Birda Ram or else the petitioner's endeavour to defend himself would be defeated in a case involving offence carrying capital punishment. 6. Learned Public Prosecutor opposed the submissions advanced by the learned counsel for the petitioner and urged that the application filed by the accused under Section 231 Cr.P.C. before the trial court was purely aimed in delaying the trial and therefore, the trial court was perfectly justified in dismissing the same and closing the cross-examination of the witness Birda Ram. 7. I have heard the arguments advanced by the learned counsel for the parties and have gone through the order under challenge. 8. Ex-facie, the order passed by the trial court does not suffer from any illegality or irregularity whatsoever. Nonetheless, the fact remains that the accused is facing trial for the offence under Section 302 IPC which carries capital punishment. It need not be said that if the accused is not allowed to cross-examine the prosecution eyewitness, his defence will definitely be prejudiced. Thus, while upholding the order passed by the trial court to the extent the trial court rejected the prayer made by the accused for deferment of the statements of the witness, the petitioner deserves to be given one opportunity for effective cross-examining the witness Birda Ram but subject to depositing cost of Rs. 2,000/- by modifying the order passed by the trial court to this extent. 9. Accordingly, the revision petition is disposed of with a direction that, upon the petitioner depositing a sum of Rs. 2,000/- with the trial court within a period of two weeks from today, the trial court shall recall the witness Birda Ram (PW-5) and shall provide one effective opportunity of cross-examination from the said witness to the accused petitioner. 10. Stay petition stands disposed of.