Bhimraoji Manikraoji Dhole vs The State Of Mah. Thr. Pso Ps ...
2022 Latest Caselaw 6094 Bom

                                   1



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH, NAGPUR.


           CRIMINAL WRIT PETITION NO. 400 OF 2022


         Bhimraoji Manikraoji Dhole, aged 65
         years, Occ. Pan Kiosk, R/o Yangaon,
         Karanja, District - Wardha.

                                                    ... PETITIONER

                                 VERSUS
   1.    State of Maharashtra,
         Through Police Station
         Officer, Police Station, Karanja
         Dist. Wardha.


   2.    XYZ, The victim, FIR Crime No.
         0336/2019, Police Station,
         Karanja, District - Wardha.

                                                   ... RESPONDENTS
_____________________________________________________________
       Shri Rohit Joshi, Advocate a/w Shri Madhur Deo, Advocate for
       the petitioner.
       Shri H.D. Dubey, A.P.P. for respondent no.1-State.
______________________________________________________________


                         CORAM         :   VINAY JOSHI, J.

                         DATED.        :   30.06.2022.




ORAL JUDGMENT :

           RULE. Rule is made returnable forthwith.

2. Heard finally by consent of both the parties. Since the

issue involved was limited, I do not deem it necessary to issue

notices to the victim.

3. The short challenge has been raised by the petitioner-

accused to the remarks endorsed by the Trial Court on 05.05.2022

while recording the evidence of prosecution witness No. 5, who is a

Teacher of Deaf and Dumb School. It is also canvassed that the Trial

Court has desisted the petitioner-accused to fairly conduct further

cross-examination. It is argued that subject to relevancy, the accused

has every right to cross-examine prosecution witnesses to elucidate

the truth, which would be helpful for raising his defence.

4. It is a case of sexual assault on minor deaf and dumb

victim girl aged 8 years. Besides other witnesses, prosecution has

examined PW 5, who is a Teacher of Deaf and Dumb School. The

witness has stated in his evidence that the victim girl was unable to

understand even a sign language, likewise the victim has not

responded to the signs and therefore, her statement was not

recorded. In fact, there was no incriminating material against the

accused.

5. Learned Counsel appearing for the accused still chosen to

cross-examine the witnesses and put some questions. The learned

Trial Court observed that the learned Counsel appearing for the

accused was unnecessarily putting irrelevant questions and

therefore, he has been reprimanded. Since the Trial Court expressed

displeasure, the learned Counsel vide Pursis dated 05.05.2022 has

declined to conduct further cross-examination. Though the petitioner

has prayed for recall of witness, however, it is evident that there is

nothing incriminating against the accused. In these circumstances,

there is no propriety in recalling the witnesses that too when the

accused himself has declined to cross-examine by filing Pursis.

6. As regards to the impugned remarks are concerned, it is

submitted that cross-examination was on the line of elucidating

some material, which may be helpful for the defence. Undoubtedly, it

is total discretion of the Trial Court to decide the relevancy of

questions put to the witnesses. If the Trial Court finds that the

questions are totally irrelevant, then he would have mention those

questions in the evidence with a remark that these are disallowed.

However, at this stage, there is no material to find as to what sort of

irrelevant questions are put. The learned Trial Court has expressed

that if the defence put further irrelevant questions then suitable

action would be taken. In fact, the Trial Court would have keep self

restraint while making such a remark against the Counsel. He would

have simply recorded the question and decline to put the said

question. Any how, the unwarranted remarks have no bearing at all.

7. In view of the above, petition stands disposed of. In the

circumstance, the remark put by the Trial Court in the evidence of

PW 5 are quashed and set aside. As regards to the prayer for transfer

of Sessions Case, the petitioner is at liberty to apply under Section

408 of the Code of Criminal Procedure, which would be decided on

its own merits.

8. The petition stands disposed of.

(VINAY JOSHI, J.)

Trupti

TRUPTI SANTOSHJI AGRAWAL

01.07.2022 16:32