The Allahabad High Court has reiterated that the credibility of any witness can be established only after the said witness is put to cross-examination by the accused persons, in connection with the charged offence.
Justice Ajit Singh held that the trial court had committed an error in not providing an opportunity to the Petitioner-accused to cross examine the prosecution witnesses, after the charges framed against them were altered.
"It is principle of natural law that nobody will be condemned unheard and proper and due hearing should be provided to the accused and the cross-examination is one of the facet of due hearing which ought to be provided to every accused to defend himself of the charge being leveled against him," the court held.
In the case at hand, the Petitioner was initially charged with criminal conspiracy under Section 120B of IPC. Later however, by way of amendment of the charge, a new role had been assigned to them viz. murder, and the accused persons were not able to defend themselves legally as they were not afforded an opportunity to cross-examine the prosecution witnesses in light of amended charges.
Inter alia, the court noted that such an approach was not only contrary to the principles of natural justice but also, the mandate contained in Sections 216 and 217 CrPC. These provisions prescribe that any alteration in the charge has to be explained to the accused and he will be allowed to recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined.
Accordingly, the court held,
"In the present case, with the framing of alternative charge, testimony of those witnesses recorded prior to that date could even be taken into consideration and this Court is of the opinion that the provisions of Sections 216 and 217 are mandatory in nature as they not only sub-serve the requirement of principles of natural justice but guarantee an important right which is given to the accused persons to defend themselves appropriately by giving them full opportunity of cross-examination of the witnesses."
Further, directions were issued to the Trial Court to call the prosecution witness day by day and provide an opportunity to the accused persons to cross-examine the witnesses, without allowing any unnecessary adjournment.
Case Title: Rekha v. State of UP & Anr.
Case No.: Application U/S 482 No. 43580/2019
Quorum: Justice Ajit Singh
Appearance: Senior Advocate Anoop Trivedi with Advocates Abhinav Gaur and Rashid Siddiqui (for Applicant); Advocate Swetashwa Agarwal (for Private Respondent)
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