Benny, Antony and Wilson vs State of Kerala

Thomas P. Joseph, J.—Public Prosecutor takes notice for Respondent.

Petitioners are accused in C.C. No. 945 of 2005 of the court of learned Judicial First Class Magistrate, Chalakkudy for offences punishable under Sections 341, 324, 326 and 354 read with Section 34 of the Indian Penal Code (for short, "the IPC"). The prosecution witnesses were examined and after questioning of Petitioners u/s 313 of the Code of Criminal Procedure (for short, "the Code"), they examined DW 1, Medical Officer who is said to have examined the first Petitioner/first accused and issued Annexure-A1, wound certificate. Thereafter Petitioners on 10.05.2011 filed C.M.P. No. 6060 of 2011 u/s 311 of the Code to recall P.Ws. 1 and 2 for further cross-examination. That petition (Annexure-A2) was opposed by the learned Assistant Public Prosecutor. Learned Magistrate dismissed C.M.P. No. 6060 of 2011 vide Annexure-A3, order dated May 13, 2011 upholding the objection of learned Assistant Public Prosecutor that more than 15 opportunities were given to the Petitioners to cross-examine P.Ws. 1 and 2, they have been cross-examined at length and that the attempt of Petitioners is to protract the proceeding. Learned Magistrate also observed that cross-examination of P.Ws. 1 and 2 runs into several pages and that recalling of P.ws. 1 and 2 being with an ulterior motive to protract the proceeding, cannot be allowed. Learned Counsel contends that it was to cross-examine P.Ws. 1 and 2 with respect to the injuries (allegedly) suffered by first Petitioner as proved by the evidence of DW 1 and Annexure-A1, wound certificate that recall of P.Ws. 1 and 2 became necessary. It is also submitted by learned Counsel that as per Annexure-A1, wound certificate it was PW2 who had inflicted injuries on the first Petitioner/first accused.

It would appear from the objection raised by the learned Assistant Public Prosecutor and the order of learned Magistrate that Petitioners availed sufficient opportunity to cross-examine P.ws. 1 and 2. But inspite of that, having regard to the circumstances stated by learned Counsel and considering the purpose of recalling P.Ws. 1 and 2, viz., to question them regarding the injuries(allegedly) suffered by the first Petitioner/first accused as proved by DW 1, I am inclined to think that Petitioners must be given an opportunity to further cross-examine P.Ws. 1 and 2. But, it shall only be on terms of cost.

Resultantly this Criminal Miscellaneous Case is allowed in the following lines:

i. Annexure-A3, order dated 13.05.2011 on C.M.P. No. 6060 of 2011 in C.C. No. 945 of 2005 of the court of learned Judicial First Class Magistrate, Chalakudy is set aside.

ii. C.M.P. No. 6060 of 2011 is allowed subject to payment of cost.

iii. Learned Magistrate is directed to recall P.Ws. 1 and 2, and post the case for further cross-examination of P.ws. 1 and 2.

iv. On the date of appearance of P.Ws. 1 and 2 Petitioners shall pay cost of .500/- (Rupees five hundred only) each to P.Ws. 1 and 2.

v. It is made clear that further cross-examination of P.Ws. 1 and 2 will be confined to the injuries (allegedly) suffered by the first Petitioner/first accused as proved by DW 1 and Annexure-A1, wound certificate.