Deepak Raikwar and Another vs State of M.P.

U.C. Maheshwari, J

The applicants/accused have preferred this revision u/s 397/401 of Cr.P.C. being aggrieved by the order dated 3.11.2011, passed by Vith Additional Sessions Judge Bhopal, in Sessions Trial No. 16/11, whereby their application filed u/s 311 of Cr.P.C. to recall the examined prosecution witness Dr. M. Lalwani (PW-17) for further cross-examination, has been dismissed. Applicants'' counsel after taking me through depositions of Dr. M. Lalwani (PW = 17) and Imtiaz Ali (PW-21), which was recorded on 2.10.2011, subsequent to examination of the aforesaid Dr. M. Lalwani along with the impugned order and the applicants'' application filed u/s 311 of Cr.P.C., said that as per settled proposition of law, the accused like applicants should be extended sufficient opportunity to defend the case and in such premises, if the Doctor of criminal case, who carried out the post-mortem of the deceased, was examined at earlier stage and thereafter, some other witness relating to the material facts is examined then, the accused like applicants, have a right to recall the earlier examined prosecution witnesses to carry out his further cross-examination in the light of material factual circumstances came in the deposition of subsequent examined witness/witnesses. In continuation, he said that as per para 4 of the deposition of Imtaiz Ali (PW-21), the deceased Saad after stepping down in front of the hospital from the auto rickshaw, went inside the hospital by walking while, the aforesaid earlier examined expert witness Dr. M. Lalwani (PW-17) in his post-mortem report and paragraph 3 & 10 of his deposition has categorically stated that the deceased sustained multiple fractures in his head and his brain material had also come out In such circumstances, subsequent to recording the depositions of Imtiaz Ali (PW-21), the further cross-examination of the Doctor on behalf of the applicants is necessary. Otherwise, the right of applicants to defend the case may be prejudiced at large and prayed to allow his application and extending the opportunity to cross-examine the Doctor M. Lalwani (PW-17) by recalling him in the trial Court by allowing this revision.

On the other hand, by justifying the impugned order, the learned Panel Lawyer Shri Chourasia said that in the available factual matrix of the case the trial Court has not committed any error in dismissing the impugned application of the applicants. As such Dr. M. Lalwani (PW-17) has already been cross-examined at length and prayed for dismissal of this revision.

Having heard the counsel, keeping in view their arguments, I have carefully gone through the copy of application filed by the applicants u/s 311 of Cr.P.C., the aforesaid depositions of the witnesses and the impugned order.

It is settled proposition of law that accused should be extended the ample opportunity to defend his case and such right should not be curtailed on account of minor technical grounds and specially such right could not be curtailed in those case in which capital punishment has been provided under the law. It is undisputed fact that applicants are facing the trial of Section 302 of I.P.C. also in which the maximum punishment till death is provided.

At this stage, I do not want to express any opinion on merits with respect of the depositions of Dr. M. Lalwani (PW-17) and Imtiaz Ali (PW-21) recorded by the trial Court for adjudication of matter as the same is to be appreciated but after going through both the depositions, in view of para 4 of the depositions of Imtiaz Ali (PW-21) and in view of para 3 & 10 of the deposition of Dr. M. Lalwani (PW-17), who was examined earlier to Imtiaz Ali, the further cross-examination of Dr. M. Lalwani, on behalf of the defence appears to be necessary. Hence, by allowing this revision, the impugned order is hereby set aside. Pursuant to it, by allowing the applicants'' application filed u/s 311 of Cr.P.C., the applicants are extended an opportunity to recall the examined prosecution witness Dr. M. Lalwani (PW-17) for his further cross-examination.

Consequently, the trial Court is directed to take appropriate steps to recall the abovementioned Doctor M. Lalwani (PW-17) and extent an opportunity to the applicants for his further cross-examination. The revision is allowed as indicated above. Certified copy as per rules.