Mam Chand v. State

Order Dasti. \l\- $N" (AJrT BHARTHOKE) JUDGE QAUGUST L2,2OLL pst t

( 'r #29 o/o L2.08.2011 Present: Petitioner in custody alongwith Mr.Pradeep Kumar Arya, Advocate with Mr. Narinder Chaudhry, Advocate, Mr. Rana Kunal, Advocate, Ms. Esha Singh, Mr. Anuj Tomar, Advocate & Mr. Shobhit Mittal, Advocate. Ms. Jasbir Kaur, APP for the respondent/State. +Crl.Rev. P.No.296/20L1 The petitioner was charged in case FIR No.603/1998 P.S. Janak Puri for the offence punishable under Section 279133813044 IPC and convicted on all the counts vide judgment of learned ACMM dated 07,L2.2010. Consequent upon conviction, vide order dated L3.I2.2010 he was sentenced to undergo Rl for the period of three months for the offence under Section 279 lPC, Rl for the period of one year for the offence under Section 338 IPC and Rl for the period of one year for the offence under Section 3044 lPC. In addition thereof, the convict was directed to pay compensation of t 25,000/- to the legal representative of the deceased Atma Ram and t 10,000/- to the injured Rakesh Rana. Feeling aggrieved by the impugned judgment of conviction and order on sentence, the petitioner preferred an appeal. The appeal was dismissed by learned Additional Sessions Judge vide judgment dated 08.02.2011, Instant revision petition is directed against the impugned judgment of conviction of learned ACMM as also the order of the appellate court. .A Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. $ It is contended on behalf of the revisionist that the conviction of the revisionist is the result of an unfair trial wherein the petitioner was not provided with a reasonable opportunity to cross-examine the witnesses. Learned counsel submits that perusal of the impugned judgment would show that conviction of the petitioner is based upon the sole testimony of Rakesh Rana (PW2), who was not cross-examined on behalf of the petitioner. Learned counsel has drawn my attention to the endorsement of the court on the copy of the statement of PW2 wherein it is recorded, "cross-examination by accused himself as counsel awaited till 1-J.:27 am not arrived, Nil. Opportunity given." Learned counsel for the petitioner submits that from this, it is apparent that the learned trial Magistrate has failed to give proper opportunity to the accused to cross-examine the witness in defence and this has resulted in gross injustice, because the petitioner could not bring out the true facts on record. ln support of this contention, learned counsel for tf''," petitioner has relied upon the judgment of the Supreme Court in the matter of Mohd. Sukur Ali Vs. State of Assam,20LL Crl.LJ. 7690. Learned APP, on the other hand, has argued in support of the judgment of conviction as well as judgment of appellate court. lt is submitted that throughout the trial, the accused was being represented by defence counsel. Therefore, if the counsel for the revisionist has preferred not to appear at the time of cross-examination of the witness, no fault can be found in the procedure adopted by learned ACMM. Learned APP has thus urged for dismissal of the revision petition. It is not disputed that neither of the witnesses examined by the prosecution, except (PWB) Inspector Anil Sharma lO, was cross-examined. It is also not disputed that the case of the prosecution rests solely on the testimony of PW2 Rakesh Rana, the injured eye witness. From the copy of statement of PW2 on record, it is evident that Rakesh Rana was examined on 15.05.2007 in early hours of the day and at 11 27 am, the learned ACMM, instead of waiting for the counsel for the petitioner to come and cross-examine the witness, asked the accused/petitioner to cross-examine the witness on his own and when the petitioner showed his inability to do a so, he closed the examination of the star witness Rakesh Rana and discharged him by recording, "Nil. Oppoftunity given." The Supreme Court, in the matter of Mohd. Sukur Ali(supra), while dealing with the issue of the