Laxmi Devi and Others vs State of U.P. and Another

S.C. Agarwal,J.

This criminal revision is directed against the order dated 22.5.2010 passed by Additional Sessions Judge, F.T.C. No.4, Budaun in S.T. No.444 of 2007, State Vs. Himmat & others under sections 363, 366, 376 IPC, P.S. Bisauli, District Budaun whereby the application 71 kha of the revisionists for recalling PW1, PW2, PW6 & PW8 for crossexamination was rejected.

Heard learned counsel for the revisionists and learned A.G.A. for the State.

Learned counsel for the revisionists submitted that earlier PW1 Smt. Shanti Devi, PW2 Dr. Harpal Singh, PW6 Jaagan Singh and PW8 Dr. Anita could not be crossexamined and the opportunity for crossexamination was closed and one opportunity should have been granted to the revisionistsaccused for crossexamination.

Learned A.G.A. supported the impugned order.

The application for recall of the witnesses was rejected by the trial court on the ground that PW1 was examined on 13.7.2007, but counsel for the defence moved adjournment application. Even on adjourned date, crossexamination was not conducted and opportunity was closed. Similarly, PW2 was examinedinchief on 26.9.2007, but he was also not crossexamined despite sufficient opportunity. The opportunity for crossexamination of PW6 has not yet been closed, but PW8 was also not crossexamined despite sufficient opportunity.

From the impugned order, it transpires that the conduct of the revisionists has been most reprehensible during the trial. Despite opportunities being given, they failed to avail the same and sought adjournments after adjournments. Closing the opportunity for crossexamination is not a solution of this problem. If the accused were misusing the liberty of bail and were not cooperating in the due progress of the case and failed to crossexamine the witnesses despite sufficient opportunity, it would have been proper to cancel their bail instead of closing the opportunity of crossexamination. Closing the opportunity for crossexamination can not be justified, as no one should be condemned unheard. In my considered opinion, one more opportunity should be granted to the revisionist to crossexamine PW1, PW2, PW6 & PW8 subject to their depositing the amount of cost imposed by the trial court from time to time.

Criminal Revision is allowed. Impugned order dated 22.5.2010 is setaside. If the revisionistsaccused deposit the whole amount of cost, imposed by the trial court from time to time, within a period of four weeks from today, they shall be afforded an opportunity by the trial court to crossexamine PW1 Smt. Shanti Devi, PW2 Dr. Harpal Singh, PW6 Jaagan Singh and PW8 Dr. Anita, who have not yet been crossexamined.