IN THE HIGH COURT OF SIKKIM ORDER SHEET ...eel.ttlNAL..APPEAL .................. NO. 6 Of i¢y 2003 SONJAY SUBRA Versus STATE OF slKKmi !MMJIIA.|!pexrfui Respondent /..-,,,,,p / ` -, , .- .|*.i `+i Order with Signature 1.30 6.2003 Present : Mr. N. Rai. Advocate for the appellant, Mr. N. a. Ichatlwada, Public Pros.ecutor assisted by Mr. .I.. a. Pradhan. Adal.Public Prosecutc)r. for tbe State - reapondent. Heard Mr. N. Rai. learned Courrsel apiearing for the appellant. Adrult the appeal. Call for the records. Mr. Thatiwada. learned Public ProsecRIto accepts notice. and. as such, no formal notice is called for upon the .State-responde Registry is directed to prepare paper book. It is made clear that as Soon as the paper book is ready. and the related recores from the court below are received. the appeal shall be listed for hearing. N ( N. S. Acting Chief 3 0 . 6 . 2 003 stlce Office Note as to aaf:Lo:n(i3:a:i lLutth##£ t, I rbeQndkLhaul ftysinfrout _ I t'0. 7iifti. Jcto3ch ,` h,tLiJ, Serial No. of Order 2.1 at/ 329 .8.20 08/2003 Order with Signature Heard learned Counsel for the partie As requested. prit up this case for hearing on 29.8.2003. In the rreantime. Mr. Rai undertakes to supply F.nglish render of FIR. N (N,iia,j CieL, singh ) e 11.8.20o3 i Chief Justice 1.1.8. 2003 The appellant stands-convicted under Section 302 IPC and sentenced to undergo i prisonpient.for life and also to pay a fine of Rs.5000/- with a default clause by the judgment and order dated 26-4-2003 passed by the learned Sessions Judge, Special Division-II, Sikkim at Gangtok in Crl. Case No.5/2002. • 2. Today is the date fixed for hearing of this appeal. At the threshold of the hearing, Mr. N. Rai, leaned counsel for the appellant brought tot our notice that four witnesses namely PWs-16, 17, 18 and 19 were not at an cross-examined because of absence of the defence counsel. He submitted because opportunity to cross- examine those witnesses were not given to the appellant, the matter should go back for retrial. Learned Public Prosecutor fairly states that the appellant should be given an opportunity to cross-examine the above four q:cc,:.¥o,:::?,P takeh on order c' • #A 3` FIR LL` LiiLJ rfuul 0~ _ I {| 8^|u,3 L] rfu N fu +k%#- •.,.`r.,?fa Order with Sjgnature Office Note ;'s toact`on`(ifany)takenon0d 5. Because of the aforesaid inegaHty c6mmitted by th rereeIt leamedSessionsTudge,thejudgmentandorderpassedb him are vitiated in law. We accordingly set aside th impugned judgment and order and remit the matter to th leamedSessionsTudge,SpeclalDivisfon-IIforlimitedtria onlywhfchmean§thatPWs-16,17,18and19shouldpresen themselvesforbeingcros§-examinedbytheappellant.The leaned Sessions Judge fs directed to issue fl.esh Summons to those witnesses and Mr. Raf who is appearing for the appellant in this Court win appear before the leaned Sessions Judge and win cross-canine those winesses on the date fixed. 6. It may also be necessary to cross-examine the Investigating Officer a8 PW§-16 to 19 would be cross- examined by the defence. The cross-eramination, if any, howeverwmbelimitedtothepuposeforwhichthematter is being renritted. The leaned Sessions Judge thereafter sham hear the prosecution and the defence and dispose of the matter according to law. This exercise, however, may becompletedwithintwomonthsofthereceiptofthelower Court's I.ecord. 7. Since the case i8 going back to the stage where the above illegalities crept in, the appellint sham remain in the same position as he was on 13-2-2003. Order with Signature 3. It appears from the order dated 13-2-2003 that the defence counsel prayed for adjournment but the learned Sessions Judge took exception to it and refused adjournment. Consequently, the prosecution examined those witnesses. PW-16 is the Doctor who conducted autopey over the dead body of the deceased. Some of the other witnesses out of the above four seemed to be seizure winesses. As the appellant was denied the chance of cross-examining those witnesses, there was clear violation of principle of natural justice resulting in failure of justice. In the circumstances, the appellant should be given a fresh opportunity to cross-examine those witnesses. 4. We somehow do not appreciate the manner in which the leaned Sessions Judge dealt with the situation. If he thought that the defence was ashing for adjournment on untenable ground, he should have inmediately dis- engagedthe defence counsel and engaged some other counsel in his place. The leaned Sessions Judge was aware of the fact that the appellant was being defended on behalf of the` Legal Services Authority. Therefore, he could have immediately taken up steps for engagement of some other defehce counsel. The appellant, therefore, should not have been allowed to suffer from defending hinself in the trial. a°cftf,'::(Yf°::y;u taken on Order Ill- SerlalNo.of Dateof Order with Signature Office Note as to Order Order ` action (I.f any)takenonOrder 8. The appeal is accordingly disposed of with the #;:f_#? above observations and directions. The lower Court records may be sent back forthwith. ? a/ 8z i, (N:;±£go¥]S=) C2hg{.:f.;:g