RAJENDRA SAXENA, J. - (1.) NOTICE was given to the learned Public Prosecutor, which he has accepted,
(2.) THIS petition has been filed under Section 482 Cr. P. C. against the order dated 8. 6. 1993 passed by the learned Special Judge, SC/st (Prevention of Atrocities) Act in Sessions Trial No. 64/1992, whereby the petitioners' application filed under section 311 Cr. P. C. praying for allowing re-cross-examination of P. W. 3 Ms. Bai Ram, was rejected. As many as eight accused persons including petitioners Premya and Babuda are facing trial for offences punishable under Sections 295, 297, 458 and 460 IPC in the trial Court. A perusal of the statement of PW-3 M/s. Bai Ram disclosed that in her Examination-in-Chief, she has deposed that only four accused persons out of the accused persons, who were present in the court, had come inside the temple and that one of them lighted one incense stick. She has further deposed that she could not tell as to who were these four accused persons. In such circumstances, the learned counsel for the petitioners did not cross-examine her. However, during the cross-examination of Shri Amrit Soni, Advocate for co-accused Nane Khan, P. W. 3 Bai Ram identified the petitioners before the trial Judge. The learned counsel for the petitioners, therefore, filed an application under Section 311 Cr. P. C. praying for giving him an opportunity for re-cross-examination of the said witnesses, which was refused. I have heard the learned counsel for the petitioners and learned Public Prosecutor and perused the relevant record. In C. T. Municipal Vs. State of Madras (1) the Apex Court has held that an accused is entitled in law to put further questions to a prosecution witness by way of cross-examination in respect of what he had stated in reply to questions put him in cross-examination by the other co-accused. Interpreting the provisions of Sections 137 and 138 of the Evidence Act, it was further held that each accused is entitled in law to test the evidence given against him by way of prosecution witness by cross-examination and such cross-examination need not be limited only to what has been stated by him in examination in-chief. It is true that though Sections 137 & 138 of the Evidence Act do not in words speak of a further ground of cross-examination, there is neither in these sections nor anywhere else in the Evidence Act any provisions to bar the accused from exercising his right of cross-examination afresh, if and when the prosecution witness makes a further statement of fact pre-judicial to him.
(3.) IN the instant case, PW-3 Ms. Bai Ram in her examination-in-chief had specifically stated that she did not identify these four accused persons out of the eight persons present in the Court, who had entered into the temple. However, in cross-examination to a question put by the counsel for co-accused Nane Khan, she identified the petitioners and stated that they were the persons whom she had identified in the test parade before the Magistrate. IN such circumstances, she has positively deposed certain facts, which are pre-judicial to the petitioners and for which in the interest of justice, the petitioners should have been allowed and an opportunity for cross-examining her has only to the extent of aforementioned new facts- Therefore, in my considered opinion the discretion used by the learned trial Judge in refusing the petitioners' request cannot be held to be judicious and the impugned order tantamounts to abuse of the process of the Court. Hence the impugned order cannot be sustained. The upshot of the above discussion is that this petition is allowed and the impugned order dated 8. 6. 1993 is set aside. It is directed that learned trial Judge will give an opportunity to the petitioners' to further cross-examine PW-3 Ms. Bai Ram only to the extent whereby she has deposed new facts against the petitioners. . ;