Court No. - 72
Case :- APPLICATION U/S 482 No. - 16184 of 2019 Applicant :- Ram Kewal And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Bibhuti Narayan Singh Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Bibhuti Narayan Singh, learned counsel for the applicants and learned AGA for the State.
2. The present 482 Cr.P.C. application has been filed to quash the order dated 06.04.2019 passed by the learned Session Judge, Kushinagar at Padrauna in Session Trial No. 611 of 2005 (State Vs. Ram Kewal & Anr.), under Sections- 302, 506 I.P.C. and allow the application under Section 311 Cr.P.C. dated 25.02.2019 as also direct the learned trial court to summon/recall the prosecution witness PW-4 namely Vishram.
3. Learned counsel for the applicants submits that though the applicants/accused persons have been regularly participating in the trial, cross-examination of an important prosecution witness PW-4 namely Vishram could not be held, due to the conduct of local lawyers on 20.05.2017 when that witness was offered for cross-examination. In such circumstances, the applicants were permitted to and they had raised some questions by way of cross-examination. However, the same was wholly inadequate. As to the other witness who were examined later, the applicants had cross-examined each and every prosecution witness through counsel.
4. Thereafter, on 25.02.2019, the applicants filed an application under Section 311 Cr.P.C., seeking recall of PW-4 stating that he had not been cross-examined properly for the reason of applicants' lawyer having remained absent as has also been stated in the application.
5. In such facts, it has been submitted that the learned court below has erred in rejecting the application on the reasoning that the said prosecution witness had already been cross-examined and that sufficient opportunity had been granted to the applicants.
6. Sri Vikas Goswami, learned AGA on the other hand submits that the application filed by the applicants is wholly belated and once the applicants had chosen to cross-examine the prosecution witness, they cannot turn around and say that the said cross-examination was inadequate or they had been denied opportunity to cross-examine the said prosecution witness.
7. Having heard learned counsel for the parties and having perused the material on record, in the first place, it is undisputed that the applicants are facing heavy charge of 302 IPC. Then, it is also noted that other than PW-4, the applicants have cross- examined all other prosecution witness through counsel. Third, the applicants are not seeking any other prosecution witness except PW-4 who could not be cross-examined by the applicants lawyer for reasons attributable purely to the lawyers and not the applicants.
8. In view of the above, in the interest of justice, it would be wholly expedient to have granted limited opportunity to the applicants to cross-examine PW-4 namely Vishram upon recall of that witness.
9. Accordingly, the present application is allowed. The order dated 06.04.2019 is set aside. The learned court below may allow a single date opportunity to the applicant to cross-examine PW-4 namely Vishram.
10. The above exercise may be completed as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order.
Order Date :- 25.4.2019 Abhilash