IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.63 OF 2019 BETWEEN :
1. SMT. UMA NARESH W/O. SRI NARESH AGED ABOUT 42 YEARS RESIDING AT NO.228 10TH MAIN SREENIDHI LAYOUT KONANAKUNTE BENGALURU-560 068 2. DENNIS S/O. SRI ANTHONY DAS AGED ABOUT 47 YEARS RESIDING AT NO.12 T. C. H. COLLEGE ROAD HARINAGARA KOTHANUR MAIN ROAD BENGALURU-560 068 3. KALE GOWDA S/O NINGAIAH AGED ABOUT 27 YEARS RESIDING AT NO.16 3RD CROSS, 3RD MAIN J. P. NAGAR, 8TH PHASE BENGALURU-560 078 4. MAHENDRA S/O MALLIKARJUNA AGED ABOUT 35 YEARS RESIDING AT NO.7 C/O SUBRAMANYA A. K. COLONY BEHIND YELLAMMA TEMPLE CHUNCHAGHATTA BENGALURU-560 068 ... PETITIONERS (BY SRI RAVISHANKAR FOR SRI M. SHIVAPRAKASH, ADVOCATE) AND :
STATE BY KONANAKUNTE POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU-560 001.
... RESPONDENT (BY SRI S. RACHAIAH, H.C.G.P.) THIS CRL.P. IS FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED 04.12.2018, IN C.C.NO.17469/2015, PENDING ON THE FILE OF THE LEARNED II A.C.M.M., AT BANGALORE, AND DIRECT THE TRIAL COURT TO PROVIDE AN OPPORTUNITY TO CROSS EXAMINE PW7, PW9, AND PW1, FURTHER ALSO TO SUMMON CW14 AND 15 TO GIVE EVIDENCE IN ORDER TO ARRIVE AT JUST DECISION OF THE CASE.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING :
ORDER Though this matter is listed for admission, it is taken up for final disposal by consent.
2. Having heard Sri Ravishankar appearing on behalf of Sri M. Shivaprakash for petitioner and Sri S. Rachaiah, learned High Court Government Pleader appearing for the State and on perusal of records it would disclose that application filed by the petitioners - accused under Section 311 of Cr.P.C. for recall of P.Ws.1, 7 and 9 for cross-examination has been rejected by the impugned order dated 04.12.2018.
3. In the application filed for recall of these witnesses, it has been stated that P.W.1 though had been cross-examined certain material questions had not been put to the said witness and as such it would be necessary to recall them. The impugned order would also disclose that change of counsel is also the reason for which recall of P.W.1 was sought, said ground would not come to the aid of the petitioners to seek recall of P.W.1 and petitioners cannot be allowed to cross- examine the witnesses part by part and step by step. In that view of the matter, prayer sought for recall of P.W.1 which has been rejected by the trial Court stands affirmed.
4. Insofar as recall of P.Ws.7 and 9 are concerned, it is noticed that P.W.7 is a material witness who was accompanying the deceased. The offence alleged against the petitioners is one under Section 304- A of I.P.C. P.W.7 being a material and important witness if he is not cross-examined by the accused, valuable right of the petitioner – accused would be taken away and as such prayer sought for recall of P.W.7 who has been discharged without being cross- examined requires to be set aside and opportunity deserved to be granted. Likewise, P.W.9 who is the Investigating Officer has also not been cross-examined. Both these witnesses were examined on 13.04.2018 and 06.07.2018 respectively and prayer for grant of time to cross-examine them has been rejected. In fact cross- examination of P.W.9 was sought to be deferred till cross-examination of P.W.7 since P.W.7 was a material witness who was said to be accompanying the deceased. In these circumstances, trial Court ought to have afforded an opportunity to the petitioners - accused to first cross-examine P.W.7 and then permit petitioners to cross-examine P.W.9. Said exercise having not been undertaken by extending opportunity to the petitioner, this Court is of the considered view that in the interest of justice one more opportunity deserves to be granted to the petitioner.
Hence, the following :
ORDER i. Criminal Petition is allowed in part.
ii. Order dated 04.12.2018 insofar as rejecting the prayer sought for to recall P.Ws.7 and 9 is hereby set aside and petitioner is permitted to cross-examine said witnesses and prosecution shall keep the said witnesses present on next date or on such date the trial Court may fix.
iii. However, it is made clear that no adjournment on whatsoever ground shall be granted by the trial Court to the petitioners for deferring the cross- examination of P.Ws.7 and 9.
iv. However, petitioners may be permitted to cross-examine P.W.7 and later on P.W.9, as prescribed under Section 231(2) of Cr.P.C.
v. However, prayer for recall of P.W.1 which has been rejected stands affirmed.
vi. Registry is directed to furnish the copy of the operative portion of the order to the learned Government Advocate to enable him to forward the same to the jurisdictional Court.
SD/- JUDGE hnm