Surjit Kaur vs D.S. Kapoor And Others
2009 Latest Caselaw 4076 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      Crl.A. 114/2006


                                 Reserved on: October 7, 2009


                               Pronounced on: October 9, 2009


#      Surjit Kaur                    ..... Appellant in person

!

                      Versus


$      D.S. Kapoor and others         ..... Respondent

^                          Through: Mr. Ravi Quazi, Advocate


CORAM:


    HON'BLE MR. JUSTICE V.K. JAIN



       1. Whether Reporters of Local newspapers may be
          allowed to see the Judgment? No

       2. To be referred to the Reporter or not? Yes

       3. Whether the Judgment should be reported in the
          Digest? Yes




Crl.A. No. 114/2006                               Page 1 of 10
 V.K.Jain, J.

1. This is an appeal against the judgment dated 19 th

September, 2005 whereby the respondents were acquitted by

the learned Metropolitan Magistrate, New Delhi. A

complaint u/s 323/325 and 506 of Indian Penal Code r/w

Section 34 thereof was filed by the appellant, late Sh.

Waryam Singh and Late Ms. Amrit Kaur against the

respondents and Late Sh. Vidya Sagar. It was alleged in the

complaint that the respondents/accused persons wanted to

oust the complainants from House No.Z-2, Hauz Khas, New

Delhi and had also been threatening them with dire

consequences. Complaints were lodged by the complainant

with the police, in this regard, a number of times. It was

further alleged that on 14th December, 1986, the accused

persons attacked complainants No.1 and 3 in their house, as

a result of which they sustained injuries. The tooth of

complainant No.1 was broken by accused No.2, Manjit

Kapoor, who gave merciless beatings to the complainants

No.1 and 3. Report was lodged with the police, but only

proceedings u/s 107/151 of the Code of Criminal Procedure

were initiated against both the parties. The complainants

sought summoning trial and punishment of the

respondents/accused persons.

2. After recording of preliminary evidence, the accused

were summoned vide order dated 12th April, 1991, for the

offences punishable U/Ss. 323/325/506/34 IPC. After

recording of pre-charge evidence, charge U/Ss. 323/506/34

IPC was framed against all the four respondents, namely,

Sh.D.S.Kapoor, Manjit Kapoor, Devika Kapoor and Sneh

Manjit Kapoor; the fifth accused Vidya Sagar having expired

during pendency of the complaint. The learned Metropolitan

Magistrate held that the whole case of the complainants was

based on the testimony of Smt. Surjit Kaur who was

examined as PW-1 and since she had admitted that she was

not present at the time of incident and other complainants,

namely, Sh. Waryam Singh and Smt. Amrit Kaur having not

been examined after framing of charge, it was difficult to

ascertain how the quarrel took place, how Waryam Singh and

others sustained injuries and who were the persons

responsible for the incident. The learned Metropolitan

Magistrate also noted that the accused did not get

opportunity to examine Waryam Singh and Amrit Kaur, who

expired before the charge was framed. Their statements

were not taken into consideration while passing order of

acquittal.

3. A perusal of the record would show that after the

respondents were summoned, only two material witnesses,

namely, Waryam Singh and Surjit Kaur were examined. The

third complainant, Amrit Kaur was not examined at any time

after summoning of the respondent.

4. As far as Smt. Surjit Kaur is concerned, admittedly she

was not at home at the time of this incident. During her

cross-examination, she has specifically admitted this fact and

has stated that the information regarding the attack was

given to her by a friend. Thus, Smt. Surjit Kaur not being an

eye-witness of the incident which took place on 14.12.86, her

testimony does not prove the charge against the respondents.

5. However, as far as complainant Waryam Singh is

concerned, I find that he was examined on 27th September,

1993 as well as on an earlier date which is not legible from

his statement or from the order-sheets. On 27th September,

2003, his examination-in-chief was concluded and his cross-

examination by learned counsel for the accused persons was

deferred. The record further shows that on 1st October,

1993, complainant Waryam Singh was recalled for cross-

examination and was cross-examined on that date. It was

contended by the learned counsel for the respondents that

cross-examination of Waryam Singh was not complete on 1st

October, 1993. It is true that the cross-examination of Sh.

Waryam Singh recorded on 1st October, 1993 is rather short,

but, the record does not indicate that it was not concluded

and was deferred on that date. The proceeding dated 1st

October, 1993 shows that he was recalled and examined on

that date. The statement recorded on 1st October, 1993 also

does not show that the examination of Waryam Singh was

deferred on that date. It was for the defence counsel to

decide how much he had to cross-examine the witness. If he

chose to limit the cross-examination, it cannot be said that

the cross-examination was not complete. Therefore, there is

no escape from the conclusion that cross-examination of Sh.

Waryam Singh before charge was concluded on 1st October,

1993.

6. Section 33 of Evidence Act, to the extent it is relevant,

provides that the evidence given by a witness in a judicial

proceeding, is relevant for the purpose of proving in the later

stage of the same judicial proceedings, the truth of the facts,

which it states, when the witness is dead, provided that the

proceedings were between the same parties, and the adverse

party in the first proceedings had the right and opportunity

to cross-examine.

7. Section 244 of the Code of Criminal Procedure provides

that when in any warrant case instituted otherwise than on a

police report, the accused appears or is brought before a

Magistrate, he shall proceed to hear the prosecution and

take all such evidence as may be produced in support of the

prosecution. Though the section does not expressly refer to

the right of the accused to cross-examine the prosecution

witness, on general principles and in view of the provisions of

Section 138 of Evidence Act, which provides that the

witnesses shall be first examined in chief and then, if the

adverse party so desires cross-examined, right to cross-

examination of the witness at pre-charge stage is implicit in

it and such a valuable right cannot be denied to the accused.

The expression „evidence‟ has been defined in Section 3 of

Evidence Act to mean and include all statements which the

court permits or requires to be made before it by witnesses

in relation to matters to fact under enquiry. The expression

"evidence" in Section 245 of the Code of Criminal Procedure

has been used in the same sense as in Section 3 of the

Evidence Act and, therefore, would include examination,

cross-examination and re-examination, if any.

8. If it is taken that right to cross-examine exists only

when there is a provision expressly conferring such a right,

then an accused in a summons case under Chapter XX cannot

have any right to cross-examine a prosecution witness since

no express provision conferring such a right upon the

accused has been made in this Chapter. That would mean

the accused cannot as a matter of right cross-examine the

prosecution witness in a summons case. Such an

interpretation would amount to denial of a fair trial to the

accused and, therefore, cannot be accepted. In fact, an

absolute right to cross-examine the prosecution witness

before charge is an integral part of examination of witness so

much so that whenever a witness is examined, failure to

provide opportunity to the opposite party to cross-examine

him would render his examination incomplete and

inadmissible unless cross-examination is waived by that

party. The right of the accused to be defended by a legal

practitioner has now been recognized as a fundamental right

under the Constitution and to hold that the accused does not

have a right to cross-examine a witness at pre-charge stage

would be to deprive him of his right to defend himself at that

stage. At some places, in Code of Criminal Procedure, right

to cross-examine the prosecution witnesse has been

expressly conferred upon the accused. But, omission to

confer such right expressly would not ipso facto mean that

the valuable right of cross-examination is not available to the

accused. Right to cross-examination being an integral part of

the examination of a witness, it is implicit whenever a

witness is examined after summoning of the accused.

9. In S.K. Abdul Awal Vs. State 1993 (1) Crimes 611, PW-8

was examined by the prosecution before framing of charge.

On account of his death, he could not be put to any cross-

examination after framing of charge. After reviewing case

law on the subject, it was held by a Division Bench of

Calcutta High Court that since the accused had cross-

examined the witness and had thereby exercised his right to

cross-examine him, there has been no prejudice to him if the

witness did not testify after the framing of charge.

10. Admittedly, complainant Waryam Singh had died after

recording of his pre-charge statement on 1st October, 1993.

Not only the respondents had the right as well as the

opportunity to cross-examine him, they did actually cross-

examine him on 1st October, 1993. Therefore, the statement

of Sh. Waryam Singh recorded at pre-charge stage is

relevant in view of the provisions contained in Section 33 of

the Evidence Act.

11. The learned Metropolitan Magistrate has not taken the

pre-charge statement of Sh. Waryam Singh into

consideration. In view of the mandate of Section 33 of the

Evidence Act, it was obligatory for him to take the statement

of Late Sh. Waryam Singh into consideration before passing

judgment on the merit of the case. Failure of the learned

Metropolitan Magistrate to take the statement of Sh.

Waryam Singh into consideration has resulted in failure of

justice and, therefore, the order passed by him cannot be

sustained.

12. For the reasons given above, the impugned judgment is

set aside and the matter is remanded back to the learned

Metropolitan Magistrate for hearing the parties and passing

a fresh order, at an early date, after taking the statement of

late Sh. Waryam Singh into consideration. The parties are

directed to appear before the learned Metropolitan

Magistrate at 10 A.M. on 9th November, 2009. The bail

bonds furnished by the respondents during trial are restored

and shall remain in force till a fresh order is passed by the

learned Metropolitan Magistrate.

Lower court record be sent back within a week.

(V.K. JAIN) JUDGE October 09, 2009/sk