Subodh Abhyankar, J
The petitioners have filed the present petition under Section 482 of Cr.P.C. being aggrieved by the order dated 30.01.2023 by 3rd ASJ, Dewas whereby the application under Section 311 of Cr.P.C. filed by the petitoners have been rejected for recalling of the witness for further cros-examination.
Shorts facts of the case are that the petitioners are facing a criminal trial vide ST No.237/2020 arising out the Crime No.257/2020 registered at Police
Station BNP, Dewas under Section 302 and 307 of IPC. The case is at the stage of recording of evidence and the prosecution evidence has already been closed and the matter was fixed for evidence of defense.
In the said proceedings, an application under Section 311 of Cr.P.C has been filed by the petitioners for recalling the witness investigating officer i.e. PW-18 for further cross examination on the ground that subsequent to his cross-examination, two other witnesses namely Shivcharan PW-19 and Shankardas PW-20 were also examined however, the discrepancies in their evidence could not be put to the Investigating Officer because he was already examined at that time. In the aforesaid application it was stated that earlier also, an application was filed under Section 311 of Cr.P.C. for recalling the witness PW-6 for further cross-examination and his cross-examination was also conducted and in respect to further cross-examination also, the statement of Investigating Officer would be needed. The aforesaid application was dismissed by the trial Court on the ground that no reasons are made out and in such facts, if came into the deposition of these witnesses it requires further cross-examination of the I.O.
Counsel for the petitioner has drawn attention of this Court to the deposition of the aforesaid witnesses namely Shivcharan PW-19 and Shankardas PW-20 and it is submitted that the certain conditions made by the said witnesses needed to be put to the Investigating Officer in his cross-examination and if this opportunity is not given to the petitioners, they would suffer in their defense.
Counsel for the State has opposed the prayer by supporting the order passed by the learned trial Court.
Having regard to the aforesaid submissions and after going through the statements of Shivcharan PW-19 and Shankardas PW-20 and taking not of the fact that PW-18 has not been cross-examined so far as the statements of Shivcharan PW-19 and Shankardas PW-20, therefore, it would be appropriate to afford an opportunity to the petitioners in the interest of justice and to ensure fair trial.
In view of the aforesaid, the impugned order is set aside and the petition is allowed.
The learned trial Court is directed to recall the Investigating Officer PW-18 for further cross-examination so far as the statements of Shivcharan PW-19 and Shankardas PW-20 are concerned. The expenses of which shall be borne by the petitoners and the learned trial Court shall proceed further in accordance with law.
Certified copy, as per rules.
