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2022 DIGILAW 1433 (KAR)

Shrikanth v. State of Karnataka

2022-11-04

MOHAMMAD NAWAZ

body2022
JUDGMENT 1. Learned High Court Government Pleader takes notice for respondent/State. 2. In this petition filed under Sec. 482 of Cr.P.C., the petitioner is praying to set aside the order dtd. 1/9/2022 passed by the Sessions Court, rejecting the application filed by him under Sec. 311 of Cr.P.C. and rejecting the prayer of the defence to cross-examine P.W.1. 3. Petitioner is facing trial for the offences punishable under Ss. 350, 376-DB, 504, 506 r/w Sec. 34 of IPC and Ss. 4 and 6 of POCSO Act, 2012. The victim was examined as P.W.1 before the trial court on 28/9/2021. Since the victim did not support the case of prosecution, the learned Public Prosecutor to play the video recording of the victim giving statement to the Police, took time for further examination and her further examination was conducted on 11/11/2021. Thereafter the victim was treated hostile by the prosecution and she was cross-examined by the Public Prosecutor. The defence prayed for time to cross-examine the victim, which prayer was rejected by the trial court and application filed under Sec. 311 of Cr.P.C. to recall P.W.1 for crossexamination was rejected vide impugned order dtd. 1/9/2022. 4. The trial court while dismissing the application has observed that when a witness turns hostile and not deposed anything against the accused, then crossexamination of the said witness by the defence after the cross-examination by the Public Prosecutor cannot be permitted. 5. The reasons assigned by the learned trial court to reject the application filed by the petitioner praying to recall P.W.1 for cross-examination is not legal and proper and the same is not sustainable in law. In a trial where serious charges are levelled against the accused, his right to cross-examine any witness cannot be taken away. In the present case it is not in dispute that P.W.1 was not at all cross-examined by the accused. In the crossexamination conducted by the Public Prosecutor, P.W.1 has admitted certain facts and therefore the trial court was not right in refusing the defence to cross-examine P.W.1. The impugned order has resulted in miscarriage of justice and therefore it is liable to be set aside and accordingly the following: ORDER The order dtd. 1/9/2022 passed by the Court of Addl. District and Sessions Judge and FTSC-I (Spl. POCSO) at Kalaburagi in Spl. Case No.35/2021 is hereby set aside. The impugned order has resulted in miscarriage of justice and therefore it is liable to be set aside and accordingly the following: ORDER The order dtd. 1/9/2022 passed by the Court of Addl. District and Sessions Judge and FTSC-I (Spl. POCSO) at Kalaburagi in Spl. Case No.35/2021 is hereby set aside. Application filed by the accused under Sec. 311 of Cr.P.C. is allowed. Learned trial judge shall fix a date for cross-examination of P.W.1 by the defence within a period of 3 weeks and on the date fixed by the trial court, the defence shall be permitted to cross-examine P.W.1. The trial court shall proceed further in accordance with law. The registry shall communicate this order to the trial court forthwith.