Rajasthan High Court - Jaipur
Hazari Ram vs State Of Rajasthan on 16 May, 1994
Equivalent citations: 1994CRILJ3758
ORDER B.R. Arora, J.
1. This miscellaneous petition is directed against the order dated 8-2-1994, passed by the Additional Sessions Judge No. 1, Sri Ganganagar (Camp Karanpur), by which the learned Additional Sessions Judge rejected the application filed by the accused under Section 311, Cr.P.C. and refused to call upon the witnesses P.W. 1 to P.W. 7 for cross-examination on the ground that sufficient opportunities were afforded to the accused for cross-examining these witnesses but no cross-examination was conducted either by the accused or by his counsel.
2. Accused-petitioner Hazari Ram is facing trial in the Court of the learned Additional Sessions Judge No. 1, Sri Ganganagar (Camp Karanpur) for the offence under Section 306, IPC. The accused-petitioner was represented through his counsel Mr. Jaswant Singh Bhadu, Advocate. The case was fixed for recording the statements of the prosecution witnesses on 10-9-1993. P.W. 1 to P.W. 7 were examined on that day. Though the accused had already engaged Mr. Jaswant Singh Bhadu to defend him but on that day Mr. Bhadu was not present in the Court. Mr. Yudhistar Singh, Advocate, appeared on that day and filed Vakalatnama and sought time to cross-examine these seven witnesses. The learned Additional Sessions Judge allowed the request of Mr. Yudhistar Singh, Advocate, and deferred the cross-examination of these seven witnesses to 18-10-1993. All the witnesses were present on that day but Mr. Jaswant Singh counsel for the accused was not. present for cross-examining the witnesses and Mr. Yudhistar Singh refused to cross-examine these witnesses and, therefore, the witnesses were discharged and the case was fixed for recording the statements of the remaining eye witnesses on the next date of hearing. The remaining eye witnesses appeared and their statements were recorded. Mr. Jaswant Singh Bhadu cross-examined the remaining witnesses. On 8-2-1994, an application under Section 311, Cr.P.C. was moved by the accused for re-calling P.W. 1 to P.W. 7 for cross-examination in the interest of justice. That application was opposed by the learned Additional Public Prosecutor and the learned Additional Sessions Judge, by his order dated 8-2-1994, dismissed the application filed by the petitioner and refused to re-call P.W. 1 to P.W. 7 for cross-examination. The application was rejected by the learned trial Court on the ground that proper opportunities were given to the accused for cross-examining the witnesses and though the witnesses were examined on 10-9-1993 but their cross-examination was deferred to 18- 10-1993, as Mr. Jaswant Singh Bhadu was not present and Mr. Yudhistar Singh filed the Vakalatnama and prayed for time. On this day i.e. on 18-10-1993 though the witnesses were present but he refused to cross-examine them whereas Mr. Jaswant Singh Bhadu could not put appearance. According to the learned trial Court these witnesses have not substantially deposed against the accused and, therefore, the cross-examination from these witnesses was not necessary. It is against this order dated 8-2.-1994, by which the learned Additional Sessions Judge dismissed the application filed by the accused-petitioner that he preferred this revision petition.
3. It is contended by the learned counsel for the petitioner that by not re-calling these witnesses for cross-examination, the right of the accused-petitioner for cross-examining these witnesses to elicit the truth, has been taken away and when once the cross-examination was deferred then it was the bounden duty of the trial court to give an opportunity to the accused to cross-examine these witnesses. It was, also, contended by the learned counsel for the petitioner that Mr. Jawant Singh Bhadu did not attend the Court on the date when the witnesses were examined and on that day Mr. Yudhistar Singh was engaged and on the subsequent date Mr. Jaswant Singh was not present and Mr. Yudhistar Singh refused to cross-examine P.W. 1 to P.W. 7. It was, therefore, prayed that the witnesses P.W. 1 to P.W. 7 may be re-called for cross-examination by the accused. The learned Public Prosecutor, on the other hand, has supported the order passed by the learned trial Court and submitted that when once the opportunity was given to the accused for cross-examining the witnesses and the learned counsel for the accused did not appear and did not cross-examine the witnesses then the accused himself could have cross-examined the witnesses. His further submission is that the order, passed by the learned Additional Sessions Judge does not require any interference.
4. I have considered the submissions made by the learned counsel for the parties.
5. The accused has a right to cross-examine the witnesses to elicit the suppressed facts and to expose the discripancies. The object of cross-examination is to impeach the credibility and the general value of the evidence given by the witnesses. The right to cross-examination is one of the valuable rights of the accused in order to elicit the truth from the witnesses. Though the accused has no right to seek postpone1 merit of the cross-examination and the cross-examination should follow the Examination-in-Chief, but in certain cases, where either the counsel for the accused is not available on account of some unforseeen reason event or the defence counsel is not prepared with cross-examining the witnesses when the Examination-in-Chief is over, then in such case, the trial Court, in its discretion, may permit the cross-examination of any such witness to be deferred until any witness is examined or re-called for cross-examination. The object of cross-examination is to enable the Court to arrive at the truth, irrespective of the fact whether the prosecution or the defence has examined the witnesses or failed to produce some evidence or due to unavoidable circumstances the accused failed to cross-examine the witnesses. The evidence is taken neither to help the prosecution nor for the defence but the same is taken for a just and proper disposal of the case. In these circumstances, in order to impart justice, and to arrive at a just and proper disposal of the case, I think it proper to allow the accused-petitioner to cross-examine the witnesses, viz., P.W.I to P.W. 6, as P.W. 7 has been given-up by the learned counsel for the petitioner for being cross-examined. If the accused will not be given an opportunity to cross-examine the witnesses then he will not be in a position to impeach the accuracy or credibility of these witnesses. But the re-calling of these witnesses is subject to the condition that the accused-petitioner will deposit the expenses for re-calling these witnesses within 15 days from today since the witness could not be cross-examined on account of non-appearance of Mr. Jaswant Singh Bhadu, Advocate, if the amount is so deposited for recalling for cross-examination of the witnesses then the petitioner will be free to recover this amount from his counsel Mr. Jaswant Singh Bhadu, Advocate, on account of whose non-appearance this litigation has been prolonged and the petitioner had to suffer.
6. In the result, the miscellaneous petitionn, filed by the petitioner, is allowed. The order dated 8-2-1994, passed by the learned Additional Sessions Judge No. 1, Sri Ganganagar (Camp Karanpur) is set aside and the learned trial Court is directed to re-call P. W. 1 to P. W. 6 for their cross-examination by the accused.