Uttam Ganpat Sumbre And Others v. The State Of Maharashtra

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.933 OF 2023 1.

Uttam Ganpat Sumbre age 54 years, occ. Sevice r/o Pimpalgaon Rotha, Tq. Parner Dist. Ahmednagar 2.

Namdeo Bappasaheb Jarange age 49 years, occ. Service r/o as above.

3.

Bhikaji Shankarrao Garkal age 50 years, occ. Service r/o Takli Dhokeshwar, Tq. Parner Dist. Ahmednagar Petitioners

Versus

The State of Maharashtra Through its Kotwali Police Station Ahmednagar Respondent Mr. S. S. Jadhavar, Advocate for the petitioners. Mr. S. N. Morampalle, APP for the State.

CORAM : R. M. JOSHI, J.

DATE : 27th JULY, 2023.

JUDGMENT :

1.

Rule. Rule made returnable forthwith.

2.

By consent, heard fnally at admission stage.

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Petitioners are challenging order dated 13th April, 2023 passed by learned Sessions Judge below Exhibit 25 in Sessions Case No. 179/2015 wherein application for recalling of PW 1 was refused. 4.

It is the contention of learned counsel for the petitioners that petitioners are facing trial for the offence punishable under Section 306 of the Indian Penal Code. It is his contention that during cross-examination of PW 1 Pramod, no question was asked pertaining to the statement made by him under Section 161 of the Code of Criminal Procedure. It is contended that by no stretch of imagination, it can be said to be flling up a lacuna. According to him, it is the right of the accused to get fair opportunity to defend himself. Learned APP opposed the petition.

5.

Perusal of the record placed before the Court clearly indicates that statement of PW 1 Pramod was recorded under Section 161 of the Code of Criminal Procedure. Needless to say that it is the right of the accused to defend himself and all fair opportunities must be given to him for that purpose. Though the application fled before the learned Sessions Judge does not specifcally describe the question in respect of which further cross-examination is required,

- 3 - learned counsel for the petitioners makes a statement on instructions that such cross-examination would be restricted to the statement of PW 1 Pramod recorded under Section 161 of the Code of Criminal Procedure. Prima facie perusal of the said statement and the First Information Report shows that the cross-examination of the informant/PW 1 is just and necessary for the effective defence of the accused. In such circumstances, the impugned order is set aside. 6.

Learned Sessions Judge to permit learned counsel for the petitioners to cross-examine PW 1 only to the aforestated extent. In order to ensure that there is no further delay in the decision of the trial, the learned Sessions Judge to complete additional crossexamination of PW 1 Pramod within a period of four weeks from today.

7.

In view of aforesaid directions, petition stands disposed of. Rule made absolute.

( R. M. JOSHI) Judge

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