Bapna, J. - (1.) THIS a revision by Vishnu Datta and Hari Ram against their conviction under sec. 325 read with sec. 34 of the Indian Penal Code by the Sub-Divisional Magistrate, Fatehpur, by order dated 14th October, 1952. The appeal was dismissed by the Additional Sessions Judge, Sikar, by order dated 8th March, 1954.
(2.) THE case for the prosecution was that when Rameshwar P. W. I, was returning from the jungle on 25th May, 1947, at about sunset he was way laid by Ramdev, Vishnu Datta and Hari Ram and given a severe beating resulting in various injuries, one of which was grievous. THE first information report was lodged at Police Station Lachmangarh at 8. 30 P. M. on the same day, and the accused were challaned to the court of Sub-Divisional Magistrate, Fatehpur. THE accused denied the charge. Ramdev was acquitted, but Vishnu Datta and Hari Ram were convicted under sec. 325/34 I. P. C. and sentenced to two months' rigorous imprisonment and a fine of Rs. 200/- each. Learned counsel for the petitioners urged that in this case Dr. N B. L. Mathur was examined on commission at Hardwar, but was not re-cross examined by the accused after the charge was framed. The accused expressed their desire on 17th December, 1947, to cross-examine all the prosecution witnesses and all other witnesses, were cross-examined except the doctor. It was argued before the trial Magistrate that the accused had been prejudiced by not being given an opportunity to cross-examine the doctor, but the objection was over-ruled, and they were convicted and entenced as aforesaid. The objection in the appeal was similarly disallowed. There is no doubt that the accused have a right to cross-examine all the prosecution witnesses after the charge and the omission to give such opportunity, especially in the case of a medical witness, may cause prejudice to the accused. The trial court broushed aside the objection by an observation that the accused were informed to go to Hardwar and cross-examine the witness when his examination was to be recorded on commission. This was, however, before the charge, and the omission to avail of that opportunity would not debar the accused from exercising that right under sec. 256 Cr. P. C. after the charge. As the accused want to avail of that opportunity, they must be allowed to do so. The revision is, therefore, allowed, the conviction and sentence are set aside, and the accused will be given an opportunity to cross-examine Dr. N. B. L. Mathur either in court or on commission, as the case may be, and thereafter the decision will be given afresh by the trial court. .;