Case Note & Summary
The applicants, Mansaram Shaligram Sawalkar and Bisram Baliram Mawaskar, were accused in Sessions Trial No. 7 of 2010 for the offence punishable under Section 376(g) read with Section 109 of the Indian Penal Code. After the evidence of the prosecutrix (P.W.1) was concluded, the applicants filed an application for recalling her for further cross-examination, stating that omissions and contradictions were not brought on record. The application did not mention that the failure was attributable to the earlier advocate, but it was argued before the Sessions Court and the High Court that the inefficiency of the lawyer caused the omissions. The Sessions Court rejected the application. The High Court, in its oral judgment, held that the accused should not suffer for the inefficiency of their lawyer. The court allowed the application for recall, subject to the condition that the applicants pay costs of Rs. 500 to the prosecutrix for her attendance. The court directed the Sessions Court to permit the recall and cross-examination of the prosecutrix on the same day or on a day convenient to the court, ensuring that the trial is not delayed.
Headnote
A) Criminal Procedure Code - Recall of Witness - Section 311 CrPC - Inefficiency of Advocate - The accused sought recall of the prosecutrix for further cross-examination after her evidence was concluded, citing that omissions and contradictions were not brought on record due to the earlier advocate's inefficiency. The Sessions Court rejected the application. The High Court held that the accused should not suffer for the inefficiency of their lawyer and allowed the recall, subject to costs. (Paras 1-5) B) Indian Penal Code - Gang Rape - Section 376(g) read with Section 109 IPC - The applicants were facing prosecution for gang rape. The prosecutrix (P.W.1) had already been examined and cross-examined. The application for recall was made to bring on record omissions and contradictions. (Paras 2-3)
Issue of Consideration
Whether the Sessions Court was justified in rejecting the application for recalling the prosecutrix for further cross-examination when the omissions and contradictions were not brought on record due to the inefficiency of the earlier advocate.
Final Decision
The High Court allowed the application for recall of the prosecutrix for further cross-examination, subject to payment of costs of Rs. 500 to the prosecutrix for her attendance. The Sessions Court was directed to permit the recall and cross-examination on the same day or on a day convenient to the court, ensuring no delay in the trial.
Law Points
- Recall of witness for further cross-examination
- Inefficiency of advocate as ground for recall
- Section 376(g) IPC
- Section 109 IPC
- Criminal Procedure Code Section 311
