Decided on July 12,1991



Kamlesh Sharma - (1.) These Cross Appeals against the judgment dated 16.12.1989 of Sessions Judge, Una, are at the instance of the accused Kuldip Kumar, Pirthi Chand and Kamal Dev challenging their conviction and sentence and at the instance of the State of Himachal Pradesh for enhancment of sentence. Pirthi Chand accused is the father and Kuldip Kumar and Kamal Dev are his sons. Kuldip Kumar accused has been found guilty of an offence of murder of Ajay Sharma punishable under Sec. 302 IPC and has been sentenced to rigorous imprisonment for life and fine of Rs. 1,000/-. He has further been convicted of the offence of making an attempt on the life of Sat Pal which is punishable under Sec. 307 IPC and sentenced to rigorous imprisonment for seven years and to a fine of Rs. 500/-. Kuldip Kumar has also been convicted of an offence under Sec. 324 I.P.C. for causing hurt to Smt. Arti Devi by means of gun shot and sentenced to rigorous imprisonment for one year and a fine of Rs. 200/-. There is one more offence under Sec. 27 of the Indian Arms Act of which he has been found guilty and for which punishment of tigorous imprisonment for one year and a fine of Rs. 200/- has been awarded.The other accused Pirthi Chand has been convicted of an offence under Sec. 324 I.P.C. for causing hurt to Smt. Nirmala Devi by means of a deadly weapon, an axe (Ex. P-2), but looking to his age he was given benefit of Sec. 4 of the Probation of Offenders Act, 1958, and was released on his furnishing personal bond in the sum of Rs. 5,000/- with one surety in the like amount. The third accused Kamal Dev has been convicted under Sec. 324 I.P.C. for causing hurt to Alka by means of an iron rod (Ex. P-3) and sentenced to rigorous imprisonment for a period of one year with a fine of Rs. 200/-.
(2.) While hearing the arguments, we have noticed that part of the evidence on which the learned Sessions Judge has relied, was not recorded in accordance with law. It consists of the statements of Sharif Mohammad (P.W.4), Surjit Singh (P.W. 16), Krishan Kumar (P.W. 17),Roshan Lal (P.W. 18), Vijay Kumar (P.W.19) and Mool Ram (P.W. 20). They were not tendered for cross-examination on behalf of Kamal Dev accused. Out of the three accused, Kuldip Kumar and Pirthi Chand were represented by Sh. H.S. Sandhu Advocate and Kamal Dev by Sh. J.D. (Jiwan Dass) A wasthi before the trial court. Their powers of attorney are not on the record but it has been admitted by Sh. H.S. Sandhu, at the bar, who is now representing all the accused in the present cross-appeals. The statements of prosecution witnesses were recorded on 17.7.1989, 28.7.1989,29.7.1989 and 16.9.1989 when both the Advocates were present on behalf of the accused as mentioned in the ZimniT orders of these dates. But from the statements of P. W. 4 and PW5 16 to 20, it does not appear that Sh. J.D. Awasthi, Advocate, was given an opportunity to cross-examine them on behalf of Sh. Kamal Dev. In the case of P.W. 4, it is only mentioned, Cross-examination by Sh. H.S. Sandhu, Advocate, and in the case of P.W. 16 to P.W. 20, only cross marks are there which clearly establish that only one Advocate had cross-examined them. Sh. H.S. Sandhu, Advocate, has also admitted at the bar that he had cross-examined all the witnesses on behalf of his clients only. It is clear from the statements of all other witnesses that both the Advocates had cross-examined either separately or jointly or if one of them or both had not cross examined, it is mentioned Opportunity given.
(3.) Now the question arises what is the effect if the record speaks that no cross-examination was conducted on behalf of one of the accused though he as well as his counsel was present. Admittedly, it is not a case where right to cross-examine was refused. Had it been there, the answer would have been simple and straight. On the other hand, it is also not a case where it could be presumed that opportunity was given and there is no defect in the evidence. It is a case in which, from the record, it appears that for some reason, may be any, cross-examination was not conducted on behalf of one of the accused. In other words, it can be said that opportunity to crossfile examine was not given to that accused. In the result, such evidence is rendered inadmissible and no judgment can be based on it.;

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