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Rajasthan High Court - Jodhpur
Bhupendra Singh Alias Tammu Singh vs State Of Rajasthan (2026:Rj-Jd:16762) on 9 April, 2026
Author: Farjand Ali
Bench: Farjand Ali
[2026:RJ-JD:16762]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Writ Petition No. 1531/2026
Bhupendra Singh Alias Tammu Singh S/o Mahendra Singh, Aged
About 1 Years, Through Legal Guardian Prem Kanwar W/o
Bhupendra Singh Aged About 40,resident Of Barada, District
Chittorgarh,raj..
----Petitioner
Versus
State Of Rajasthan, Through The Public Prosecutor.
----Respondent
For Petitioner(s) : Mr. Robin Singh
Mr. Vishal Sharma
For Respondent(s) : Mr. Surendra Bishnoi, AGA
HON'BLE MR. JUSTICE FARJAND ALI
Order
REPORTABLE
09/04/2026
1. The present Writ Petition has been instituted assailing the
order dated 10.02.2026 passed by the learned Addl. Sessions
Judge No.3, Chittorgarh in Sessions Case No.165/2023, whereby
the application preferred on behalf of the accused-petitioner for
recalling a material prosecution witness came to be declined.
2. I have heard learned counsel for the parties and gone
through the niceties of the matter.
3. At the outset, it would be apposite to delineate, in succinct
yet structured form, the factual matrix giving rise to the present
lis are that the petitioner is facing trial for an offence of murder, a
charge of the gravest magnitude, presently pending adjudication
before the learned Additional Sessions Judge No.3, Chittorgarh.
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During the course of trial, prosecution witness PW-9 namely
Rajesh Lal, who is stated to be an eyewitness to the alleged
occurrence, was examined on 23.04.2024. It is not in dispute that
an opportunity to cross-examine the said witness was formally
extended to the defence. However, owing to the absence of the
engaged counsel on that particular date, the petitioner being
unversed in the nuances of law and the delicate art of cross-
examination was constrained to confront the witness himself,
resulting in a perfunctory and ineffective cross-examination.
3.1. This Court cannot remain oblivious to the foundational tenet
that a criminal trial, particularly one involving an accusation
punishable with death or life imprisonment, is not a mere
procedural ritual but a solemn judicial inquiry wherein the liberty
and, indeed, the life of an individual stands imperilled. The right of
an accused to effectively cross-examine a material witness is not
an ornamental formality but constitutes the very marrow of a fair
trial, deeply embedded within the guarantees of natural justice
and due process.
3.2. The record reveals that although an opportunity was
ostensibly granted, the same, in substance, stood vitiated by
circumstances beyond the control of the accused. The absence of
counsel on the relevant date cannot be viewed in isolation or with
pedantic rigidity, particularly when the consequence of such
absence results in the deprivation of a meaningful defence. A lay
accused cannot be expected to unravel inconsistencies, test
veracity, or impeach the credibility of a crucial eyewitness with the
same dexterity as a trained legal practitioner. To construe such a
constrained exercise as a valid and complete cross-examination
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would be to elevate form over substance and to reduce the
concept of fair trial to a hollow incantation.
3.3. It is trite that in cases of such gravity, where the trial may
culminate in the imposition of capital punishment, the Courts are
enjoined to adopt a liberal and justice-oriented approach, ensuring
that no prejudice, howsoever inadvertent, is caused to the
accused. Denial of an effective opportunity to cross-examine a
prime witness, particularly an eyewitness, would amount to a
palpable infraction of the right to fair trial and would strike at the
very root of the adjudicatory process. The criminal justice system
cannot countenance a situation where an accused is condemned to
face the severest penalty without being afforded a full, fair, and
efficacious opportunity to defend himself.
3.4. Undoubtedly, recalling a witness entails certain
inconvenience, and the Court must remain conscious of the
attendant hardship caused to such witness. However, the scales of
justice must invariably tilt in favour of ensuring a fair trial rather
than preserving procedural rigidity. The inconvenience to the
witness can be suitably mitigated by awarding appropriate costs,
but the irreversible prejudice to the accused, if denied an
opportunity of effective cross-examination, cannot be
countenanced.
3.5. It is also noteworthy that the witness in question was not
subjected to repeated summons, nor has there been any dilatory
tactic on the part of the accused seeking to protract the trial. The
request for recall appears to be bona fide and rooted in the
legitimate necessity of ensuring an effective defence.
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3.6. In view of the foregoing analysis and upon a holistic
consideration of the facts and circumstances of the case, this
Court is of the considered opinion that the impugned order suffers
from an overly technical approach, thereby occasioning failure of
justice.
4. Accordingly, the petition deserves to be and is hereby
allowed. The order dated 10.02.2026 passed by the learned
Additional Sessions Judge No.3, Chittorgarh in Sessions Case
No.165/2023 is hereby quashed and set aside. Consequently, the
application preferred on behalf of the accused-petitioner under
Section 348 of the BNSS is allowed. The learned trial Court is
directed to issue process for securing the presence of PW-9 Rajesh
Lal for the limited purpose of his cross-examination on behalf of
the accused.
4.1. It is further directed that on the date so fixed by the trial
Court, upon appearance of the said witness, the cross-
examination shall be conducted on the very same day and shall
not be deferred on any pretext whatsoever. No adjournment shall
be granted to the accused, and the opportunity shall stand
exhausted on that very day.
4.2. The learned trial Court shall also ensure that the cross-
examination remains confined to relevant and material aspects of
the case. Scandalous, vexatious, irrelevant, or unnecessarily prolix
questioning shall not be permitted.
4.3. As a measure to balance equities and to compensate for the
inconvenience caused, the petitioner shall deposit a sum of Rs.
5,000/-, which shall be tendered to PW-9 Rajesh Lal through the
Court on his appearance, prior to commencement of cross-
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examination.
4.4. With the aforesaid directions, the present petition as well as
stay petition and all pending applications, if any, shall stand
disposed of.
(FARJAND ALI),J
203-Mamta/-
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