Jalli Suresh vs The State Of Telangana
2023 Latest Caselaw 677 Tel

                                                 Crl.Petition No.1377 of 2023
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       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').

Crl.Petition No.1377 of 2023

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

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.

Crl.Petition No.1377 of 2023

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.

Crl.Petition No.1377 of 2023

12. Accordingly, the Criminal Petition is disposed of.

Miscellaneous applications pending, if any, shall stand closed.

_____________ K.SURENDER, J Date: 09.02.2023.

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Note: C.C. tomorrow.

B/o.

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