VISHAL Vs. STATE OF M P

JUDGEMENT

(1.) THIS revision has been directed against the order dated 24-5-2004 passed by the learned XI Addl. Sessions Judge, Indore in Sessions Trial No. 407/2003 thereby dismissing an application under Section 311 of the Code of Criminal Procedure filed by the applicants for recalling two witnesses for the prosecution named Sunil Kushwaha (P. W. 6) and Gajendrasingh (P. W. 10), for cross-examination.

(2.) LEARNED Counsel for the applicants has vehemently submitted that the applicants arc facing murder trial and both the witnesses have not been cross-examined by their Advocate Shri Ashok Shukla. Therefore, the applicants have filed an application under Section 311 of the Cr. PC for recalling the aforesaid two witnesses for cross-examination, but the same has been dismissed without assigning any valid reason. On 6-7-2004, this Court had directed the learned Counsel for the applicants to file the certified copies of the orders right from 26-2-2004 and the same have been filed only on 19-7-2004 by the Counsel for the applicants. This Court has gone through the impugned order dated 24-5-2004 and found that the reasons assigned by the learned Trial Court for dismissal of the application do exist in the record. The applicants were defended right from the date of the examination of prosecution witnesses, i. e. , 26-2-2004. On that date, they filed Vakalatnama. Thereafter, the trial was fixed also for 27-2-2004. On this date, Sunil Kushwaha (P. W. 6) and Jugal Kishore (P. W. 7) were examined by the prosecution, but Advocate Shri Sharma, Counsel for the applicants submitted an application seeking adjournment on the ground that Sr. Advocate Shri Ashok Shukla was recently engaged and was unable to appear on that date before that Court. Learned Trial Court accepted the prayer of adjournment and bound-down both the witnesses for their cross-examination by Advocate Shri Ashok Shukla on 10-3-2004 though Advocate Shri Ashok Shukla already appeared on 26-2-2004 and cross-examined four witnesses. Therefore, the ground mentioned by Advocate Shri Sharma in the application that Advocate Shri Ashok Shukla was recently engaged, docs not find support from the material on record.

(3.) ON 10-3-2004, the witnesses Sunil Kushwaha and Jugal Kishore, (P. W. 6) and P. W. 7) respectively, Ratansingh Chauhan and Shailesh Gujar were present. On this date Gajendra Singh (P. W. 10) was also examined by the prosecution. Again on this date, the Counsel for the applicants had filed an application seeking adjournment on the ground that Sr. Advocate Shri Ashok Shukla could not appear because he is suffering from viral-infection. This application was also allowed by the learned Trial Court and bound down all the five witnesses for their appearance on 12-3-2004, specifically directing them to remain present for their cross-examination before tea-break. On 12-3-2004, all the witnesses were present, but Advocate Shri Ashok Shukla cross- examined only Shailesh Gujar (P. W. 5), Jugal Kishore (P. W. 7) and Ratansingh Chauhan (P. W. 9) and sought adjournment for cross-examination of Sunil Kushwaha (P. W. 6) and Gajendra Singh (P. W. 10) on the ground of his sickness. Again the Trial Court accepted the prayer of the Counsel and bound down both these witnesses for their appearance on 26-4-2004. The Court also issued summons for other witnesses in the case. On 26-4-2004, both the witnesses Sunil Kushwaha (P. W. 6) and Gajendra Singh (P. W. 10) were present, but they were not cross-examined by Advocate Shri Ashok Shukla and his junior Advocate Shri M. S. Sharma filed an application seeking adjournment.