It is the duty of a trial court to ensure fair trial and not to shut its eyes when cross-examination of an important witness is ineffective, a sessions court here has observed. District and Sessions Judge Girish Kathpalia made the observation while allowing the appeal of a man, accused of assaulting the wife of a Delhi Police employee at a CGHS hospital here, against a magisterial court order refusing to recall the complainant for cross-examination.
“It is the duty of the trial court to ensure fair trial,the object of the trial being to arrive at the truth. “Denial of opportunity to an accused to carry out effective cross-examination of prosecution witnesses entails not in just denial of fair trial to the accused but also denial of complete material before the trial court to arrive at the truth,” the judge said. The man, an employee of a CGHS dispensary in south east Delhi, had claimed that the complainant was not properly cross-examined due to his previous counsel’s incompetence.
The court granted the last opportunity to the accused to cross-examine the alleged victim, noting that her examination was “practically nil”. “Of course, this court cannot certify the competence or otherwise of a defence counsel. But at the same time, the court cannot shut its eyes in a situation where the cross-examination of a material witness is not just ineffective but practically nil, as happened in the present case. “Going by the material on record, in my considered view,the court shall not be able to arrive at the truth without detailed and effective cross-examination of complainant de facto,” it said.
According to the prosecution, the complainant had gone to the dispensary and was waiting for her turn when the accused,an employee there, suddenly caught hold of her hand and injured her. The accused, however, had claimed that the woman was trying to enter the doctor’s chamber out of turn but when here fused to allow her, she lodged a false case against her. Opposing the claim, the prosecutor had said the plea for witness recall was filed at a belated stage and trial could not be continued forever. The court, however, relied on the contention of the accused that the cross-examination of complainant was practically nil as the only question asked by the previous counsel led to the answer that she was carrying the prescription slip of the doctor and her husband was working with Delhi Police. “The revision petition is allowed. The order of the Magistrate is set aside. The revisionist is granted only one more opportunity to cross-examine the woman subject to her availability,” it said.