Crl.Petition No.1377 of 2023
1
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.1377 OF 2023
O R D E R:
This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') by the petitioners- Accused to quash the impugned order dated 28.12.2022 in Crl.M.P.No.217 of 2022 in S.C.No.85 of 2018 passed by the learned I Additional District and Sessions Judge, Yadadri-Bhuvanagiri District, and consequently to pass an appropriate order by allowing the petition filed under Section 233(1) and (3) of Cr.P.C. enabling the petitioners to lead defence evidence.
2. Heard learned counsel for the petitioners and learned Additional Public Prosecutor for the respondent - State. Perused the record.
3. The petitioners - accused are facing trial for the offences under Sections 498-A, 302 alternatively 304-B read with 109 of Indian Penal Code (for short 'IPC') and Sections 3 and 4 of Dowry Prohibition Act (for short 'D.P. Act').
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4. Briefly, the facts of the case are that the accused No.1 was married to deceased and at the time of marriage, certain dowry was also given. Thereafter, differences arose between the spouses and a panchayat was also held, but the accused did not change their attitude. However, the wife of accused No.1 found dead hanging with chunni.
5. During the course of investigation, the Police found that accused have committed the above offence and the learned Sessions Judge has framed charges accordingly. After conclusion of examination under Section 313 of Cr.P.C., the petitioners - accused filed an application under Section 233(1 & 3) of Cr.P.C. vide Crl.M.P.No.217 of 2022, requesting the court to examine two witnesses viz., Talapally Srinu who is listed prosecution witness No.20 and acted as a panch witness to the confession and seizure of accused Nos.1 to 4 and another witness namely Alakuntla Narsimha, in their defence. It is stated in the said application filed that the said witnesses are acquainted with the facts of the case and their evidence is necessary to adjudicate upon the issue.
6. The learned Sessions Judge found that recalling the witness would be permitted if essential for adjudication of the case, relying Crl.Petition No.1377 of 2023 3 upon the judgment of the Hon'ble Supreme Court in State (NCT of Delhi) Vs. Shiv Kumar Yadav and another reported in (2016) 2 SCC
402.
7. In the present case, at the stage of arguments, application under Section 233(1 & 3) of Cr.P.C. was filed by the petitioners for examining the aforesaid witnesses in their defence.
8. The accused have a right to defend themselves and the same cannot be denied, unless compelling and cogent reasons are given for denial of examination of defence witnesses. In the present case, no such reasons are given by the learned Sessions Judge to deny the opportunity of examining defence witnesses on behalf of the accused. The charge is also one under Section 302 of IPC which prescribes capital punishment. In the said circumstances, prejudice would be caused if the accused is denied an opportunity to examine witnesses in defence. Whether the evidence would be helpful or not can only be decided after examining the said witnesses.
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9. Learned Additional Public Prosecutor submits that the 2nd respondent - de facto complainant has to be notified regarding the present application. He further submits that the names of these witnesses were not put during the course of cross examination.
10. The evidence of these witnesses sought to be examined whether truthful or otherwise can be determined by the Court on the evidence adduced. Only for the reason of not suggesting names of these petitioners will not in any manner take away the right of the accused to examine such witnesses in defence. Further, since this Court finds that not giving an opportunity for the accused to examine defence witnesses is illegal, issuance of notice to 2nd respondent is not necessary.
11. For the said reasons, the order of the learned Sessions Judge is set aside. The witnesses viz., Talapally Srinu and Alakuntla Narsimha shall be permitted to be examined by the accused in defence and their evidence shall be concluded on the very same day of their appearance which would be the next date of hearing from the date of receipt of a copy of this order.
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12. Accordingly, the Criminal Petition is disposed of.
Miscellaneous applications pending, if any, shall stand closed.
_____________ K.SURENDER, J Date: 09.02.2023.
rev Note: C.C. tomorrow.
B/o.
rev