Bombay High Court
State Of Maharashtra Thr. Police ... vs Uttam Baban Babhulkar And Others on 21 September, 2017
Bench: V.M. Deshpande
apl.132.17(J) 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO. 132 of 2017
State of Maharashtra,
Through Police Station Oficer,
Shegaon(City) Police Station,
District-Buldhana. ..... APPLICANT
...V E R S U S...
1. Uttam Baban Babhulkar,
Aged about 65 years,
2. Eknath Uttam Babhulkar,
Aged about 35 years,
3. Charan Uttam Babhulkar,
Aged about 21 years,
4. Pramod uttam Babhulkar,
Aged about 21 years,
All R/o Gram Zadegaon,
Tahsil-Shegaon,District-Buldhana. ...NON-APPLICANTS
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Shri M.J.Khan, Advocate for State-applicant with Shri A.P.Tathod,
Advocate (assist to prosecution)
-------------------------------------------------------------------------------------------
CORAM:- V. M. DESHPANDE, J.
DATED :- SEPTEMBER 21,2017
ORAL JUDGMENT
Rule. Rule is made returnable forthwith. Heard finally
by consent of learned counsels for the parties.
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apl.132.17(J) 2
2] The State-non-applicant has challenged the order
passed by the learned Additional Sessions Judge,Khamgaon dated
25/1/2017, below Exh.77, in S.T.No.70/2014 by which the
learned Judge of the Court below allowed the application filed on
behalf of the non-applicants-accused under Section 311 of the
Code of Criminal Procedure, of recalling the complainant for re-
examination.
3] The non-applicants are chargesheeted for the offence
punishable under Section 307 r/w 34 of the Indian Penal Code
and 188 of the Indian Penal Code. After framing of the charge,
recording of the evidence of the prosecution witnesses was
started by the learned Judge of the Court below.
4] On 21/9/2016, the prosecution examined Vitthal Patil
(PW1). After his examination in chief , he was cross-examined by
learned counsel for non-applicants. Thereafter, other witnesses
were also examined. When the case was fixed for recording of
evidence of other prosecution witnesses on 29/12/2016, an
application under the signature of learned advocate for the non-
applicants was filed under Section 311 of the Code of Criminal
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apl.132.17(J) 3
Procedure. The said application is at Exh.77 on the record of the
learned Court below. In the said application, it is stated that
complainant Mahadeo Sargandhar Bhilkar was examined on
4/11/2016. Though he was cross-examined according to the non-
applicants some questions remained to be put by the learned
counsel for the accused-non-applicants during the cross-
examination. Therefore, the application was moved for recalling
complaint Mahadeo Sargandhar Bhilkar. The said application is
allowed by the learned Court below.
5] The order passed by the learned trial Court in my view
is incorrect. It can never be reason for recalling of the witness
that advocate failed to put certain questions during the course of
cross-examination. The learned Judge of the Court below ought
to have seen that it was never the case of the accused that
opportunity was not given to them to cross-examine the
complainant. Once the cross-examination of the complainant was
taken by the learned defence counsel extensively and thereafter
the said witness was discharged the law does not permit that the
said witness should be recall only for the purpose of cross-
examination on the ground that certain questions were remained
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apl.132.17(J) 4
to be put to the concerned witness. If such course is allowed then,
it will be endless. In my view, learned trial Court has not correctly
applied law in that behalf . In that view of the matter, the
application filed by the State is required to be allowed. Hence,
order.
ORDER
I) The application is allowed.
II) The order passed by learned Additional Sessions Judge,
Khamgaon on 25/1/2017 below Exh.77 in S.T.No.
70/2014 stands set aside.
III) The learned trial Court is directed to proceed with the
matter and should complete and dispose of
S.T.No.70/2014 as early as possible and in any case
within a period of ten months from today.
Rule is made absolute.
CRIMINAL APPLICATION (APPP) NO.480 OF 2017
The application is allowed.
JUDGE
kitey
