Nityanand Sharma vs State of H.P.

Dharam Chand Chaudhary, J.—Aggrieved by the order Annexure P-2 passed in an application u/s 311 of the Code of Criminal Procedure, the accused-petitioner (hereinafter referred to as the ''Accused'') has filed this petition for quashing the same on the grounds inter-alia that the same is highly wrong, unjust and against the facts and circumstances of the case. The reason assigned for dismissal of the application that PW-3, the prosecutrix was subjected to lengthy cross-examination, hence need not to be recalled for further cross-examination is stated to be neither cogent nor plausible. On the other hand, the prayer for her cross-examination on the ground of ill health of the learned defence counsel being genuine and legally sustainable should have been allowed. Having gone through the application Annexure P-1 and the documents annexed thereto, it is apparent that prior to registration of the case under Sections 376, 506 and 120-B of the Indian Penal Code vide FIR No. 30/2011 dated 25th February, 2011, the prosecutrix had instituted a petition u/s 125 Cr.P.C. against the accused for allowing her maintenance and the order passed in that petition by learned Additional Chief Judicial Magistrate, Panchkula dated 28.04.2011 i.e. after the registration of the case. She has also made an application to the Superintendent of Police, Solan on 19th February, 2011 against the accused and on the basis thereof, the FIR seems to be registered against him. She has also instituted the proceedings under the Protection of Women from Domestic Violence Act, 2005, which was registered as complaint No. 47/3 of 2011 and dismissed vide order dated 2nd December, 2011. The accused-petitioner had also filed a complaint against the prosecutrix to the Superintendent of Police, the Deputy Commissioner, Solan and also to the SHO, Police, Station, Dharampur, Distt. Solan. All these documents were annexed to the application u/s 311 Cr.P.C. and it was submitted that learned counsel, being unwell on account of high fever, could not put the same to the prosecutrix in her cross-examination nor could cross-examine her on material aspects of her statement made on 4th February, 2013. Learned trial Judge has, however, dismissed the application on the sole ground that learned defence counsel has cross-examined the prosecutrix at length and her cross-examination spread over in six pages.

On analyzing the submissions on both sides and also the record, it would not be improper to conclude that the opportunity to cross-examine PW-3 further on the grounds stated in the application, in all fairness and in the ends of justice would have been granted for the reason that learned counsel was running high fever, as is apparent from the contents of the application supported by his own affidavit. The paramount consideration would have been to ensure a fair trial of the accused and not the volume of the pages containing her cross-examination conducted on behalf of learned defence counsel.

Learned Additional Advocate General is absolutely justified in submitted that further cross-examination of the said witness on each and every aspect cannot be permitted at this stage, particularly when she has been cross-examined at length by learned defence counsel and rightly so, as the learned defence counsel can cross-examine her only in respect of the documents annexed to the application, no doubt, on the statement made by her in examination-in-chief on 04.02.2013 also, however, only with respect to left out and relevant questions, if any, and not by way of repetition or to fill up the lacuna, if any, left in the defence version.

This Court, therefore, is inclined to afford one opportunity to learned defence counsel to cross-examine PW-3 for the reason that such request has been supported by the affidavit of learned defence counsel and also that application u/s 311 Cr.P.C. for the purpose was filed on 7th February, 2013 i.e. immediately after her statement recorded on 04.02.2013. Being so, this petition is allowed. Consequently, the impugned order is quashed and set aside. The accused-petitioner is granted one more opportunity to cross-examine PW-3, the prosecutrix further, however, her cross-examination is restricted only qua the documents filed along with the application u/s 311 Cr.P.C. and on any other material and left out aspect of her statement in examination-in-chief necessary for the fair trial of the accused.

The parties to appear before the trial Court on 29th June, 2013, when a suitable date for further cross-examination of PW-3, in the light of the observations and recording remaining prosecution evidence will be fixed by the learned trial Judge. The petition stands accordingly disposed of, so also the pending application(s), if any.