1 Cri.Appeal No.375/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 375 OF 2010 Ghanshyam s/o Masaji Jondhale, Age : 60 years, Occu.Nil, R/o Jaibhimnagar, Nanded ..APPELLANT VERSUS The State of Maharashtra Through Police Station, Vazirabad, Nanded ..RESPONDENT Mr R.A. Tambe, Advocate (appointed) for the appellant; Mr N.R. Shaikh, Asstt. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 21st July, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code on two counts and sentenced to imprisonment for life on both the counts and to pay fine of Rs.1,000/- on each count, without a default sentence being imposed, by 2 Cri.Appeal No.375/2010 the Additional Sessions Judge, Nanded, by judgment dated 10.5.2010 in Sessions Case No.217 of 2007, by this appeal questions the correctness of his conviction and sentence. 2. This appeal was forwarded by the appellant from jail and we had accordingly appointed Advocate Shri R.A. Tambe to represent the appellant in this appeal before us. The appellant is alleged to have killed his wife Sunita and Gayabai, his mother-in-law on 13.9.2007. Prosecution in support of its case had examined eighteen witnesses while the defence of the accused is of denial. Amongst the various witnesses examined by the prosecution, an important and vital aspect for the prosecution is the deposition of P.W.9 Shila Kapse, a Nurse in the Female Eye Ward No.10 where the offence is alleged to have been committed by the appellant/accused. Unfortunately, when this witness was examined, the Counsel for the appellant was absent and consequently the Court deferred the cross-examination till 5.10 p.m. and thereafter called out the matter, but as the Counsel for the appellant was not present, the Trial Court closed the cross-examination. This witness, i.e. P.W.9 Shila Kapse was examined on 11.1.2010. In her examination- in-chief she has identified the appellant as the assailant who had inflicted the injuries to both the deceased by an axe and later on had thrown the axe in the ward and was apprehended by the police and the security personnel. Another witness examined by the prosecution is P.W.14 Purushottam Pawar. This witness was examined on 5.3.2010 and 3 Cri.Appeal No.375/2010 unfortunately as the Counsel for the appellant was absent, the cross- examination came to be closed. 3. Mr Tambe, learned Counsel for the appellant has pointed out to us that the appellant/accused had filed an application at Exh.92 for recalling both P.W.9 Shila Kapse and P.W.14 Purushottam Pawar for cross- examination. The Trial Court rejected the aforesaid application on the ground that sufficient opportunity had been provided to the accused for cross-examining the said witnesses but the accused did not avail the opportunity and the application at Exh.92 was moved by the accused at the at the stage when the case was fixed for final arguments. Perusal of the order sheet shows that on 5.4.2010 the aforesaid application came to be rejected. Thereafter the case was fixed on 6.4.2010 and the arguments were heard and the matter was adjourned to next day. On 7.4.2010 the trial was adjourned for 17.4.2010, but since the Trial Court was busy in the recruitment process the matter was adjourned for 27.4.2010. On 27.4.2010 the trial came to be adjourned for judgment on 28.4.2010 and ultimately the judgment came to be delivered on 5.5.2010. 4. It is true that the Trial Court had waited till the close of the day for the presence of the Counsel for the appellant and has recorded that since the Counsel for the appellant was absent when the matter was called out at 5.10 p.m., the cross-examination was closed. However, the entire prosecution case revolves round the evidence of P.W.9 Shila Kapse and 4 Cri.Appeal No.375/2010 in such circumstances, therefore, according to us, an opportunity ought to have been given to the appellant for cross-examining P.W.9 Shila Kapse. An application in the nature of the application at Exh.92 ought to have been filed before the Court at the first opportunity. However, for the fault of the Counsel for the appellant, since the appellant is facing a charge for a capital offence, he should not be made to suffer and, therefore, an opportunity, according to us, ought to have been granted. 5. We are of the considered opinion, therefore, that the matter needs to be remitted back to the Trial Court by giving an opportunity to the appellant to cross-examine P.W.9 Shila Kapse and P.W.14 Purushottam Pawar. We accordingly allow this appeal and quash and set aside the judgment and acquit the accused and remit the matter back to the Trial Court for a decision afresh, in accordance with law, after giving an opportunity to the appellant/accused of cross-examining P.W.9 Shila Kapse and P.W.14 Purushottam Pawar. The Trial Court shall issue summons to both these witnesses giving an opportunity to the accused to cross-examine them. Mr Tambe, learned Counsel appointed for the appellant states that the appellant would co-operate with the Trial Court in the expeditious disposal of the case and the accused would not seek unnecessary adjournment for cross-examining P.W.9 Shila Kapse and P.W.14 Purushottam Pawar. Since the appellant was not on bail during trial, the appellant shall continue to remain in the judicial custody and the Trial Court shall expeditiously decide the trial, in accordance with law, 5 Cri.Appeal No.375/2010 after the cross-examination of P.W.9 Shila Kapse and P.W.14 Purushottam Pawar. We expect the Trial Court to complete this exercise within a period of four months from the receipt of the record and proceedings from this Court. 6. Appeal is accordingly allowed as indicated above. We quantify the fees payable to Shri R.A. Tambe, learned Counsel appointed for the appellant at Rs.5,000/-. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria375.10