RAMESH AND SURESH GUMAN SINGH Vs. STATE

JUDGEMENT

(1.) THE revision as well as the Crl.M.P. had been filed to revise the orders passed by the learned Second Additional Sessions Judge, Madras in Crl.M.P.Nos.2166 and 2167 of 1989 respectively in Sessions Case No.133 of 1989 on his file dismissing those applications filed under Sec.231(2) of the Code Criminal Procedure, 1973 praying for deferring the cross-examination of P.W.1, approver until all the independent witnesses excepting the investigating officer are examined during trial. THE revision petition in Crl.R.C.No.334 of 1989 is accused 1 and the petitioners in Crl.M.P.No.7497 of 1989 are accused 2 and 3 before the trial Court.

(2.) ACCUSED 1 is running a Glassware & Crockery shop under the name and style of �Ramesh Kumar Uthamchand� at No.9, Kasi Chetty Street. ACCUSED 2 is his younger brother and he is assisting him in his business, accused 3 and the approver P.W.1 were employees working under accused 1 in the said business. ACCUSED 1 married the deceased Kamala Devi about four years prior to her death. The spouses were blessed with a child ACCUSED 1, his brother accused 2, the deceased living in the fourth floor at Door No.22, Thulasingam Street, Sowcarpet, Madras-79. The servants, namely, accused 3 and the approver P.W.1 were also having boarding and lodging in the house of accused 1. ACCUSED 1 used to go on tour to various places in India and foreign countries for business reasons, very often. On 6.6.1987, accused 1 left for Singapore by flight that took off at Madras at 11.00 P.M. Prior to his departure, it appears that a conspiracy had been hatched between accused 1 and 2 to commit the murder of Kamala Devi during his absence from station in such a way as to make it appear to the outside world that it was a case of suicide by falling from the fourth floor. ACCUSED 2 enlisted the support of accused 3 and the approver P.W.1 in working out the methodology of performing the feat sought to be accomplished pursuant to the conspiracy. On the night of 9.10.1987, accused 2 and 3 and the approver entered into the room of the deceased while she was fast asleep, accused 2 and 3 quenched their lascivious desire by raping her by turns and thereafter pushed her down from, the balcony of the fourth floor, in the early hours of the morning. The case though registered initially under Sec.174, Cr.P.C, was subsequently altered into one under Secs.120-B, 302, 376 and 201, I.P.C., against accused 1 to 3 and the approver, P.W.1 After completing the formalities of the investigation, a report had been laid under Sec. 173(2), Cr.P.C, for the aforesaid offences against accused 1 to 3 before the VIIIth Metropolitan Magistrate, George Town, Madras, who in turn, after completing the formalities of giving all records to accused and examining the approver, committed the case to Court of Session, Madras.

(3.) LEARNED counsel for the petitioners drawing my attention to the various relevant provisions under the old Code of Criminal Procedure, 1898, amended Code of 1955 and the new Code of 1973 as regards the procedure available in the respective Codes regarding committal and Sessions trial, would lay stress and emphasis on the provisions of Sub-sec.(2) of Sec.231 - salutary provisions of which had been introduced in the new Code of 1973--which give a very valuable right to the defence to defer the cross-examination of any witness until any other witness or witnesses have been examined or recall any other witness for further cross-examination, and in the backdrop of cannons of justice, equity and fairplay demand judicial discretion to be exercised favourably to the defence in a criminal trial of heinous offence of murder and allied offences putting in jeopardy the life and liberty of the individual facing such a trial.