THE RIGHT TO CROSS-EXAMINATION IS AN ESSENTIAL PART OF FAIR TRIAL AND CANNOT BE CURTAILED BRISKLY OR DENIED MECHANICALLY.

1. - The petitioner is aggrieved by the order dated 18.2.2013 passed by the Additional District & Sessions Judge No. 3, Beawar (Ajmer) whereby the learned Judge has closed the right of cross-examination of the accused-petitioner.

2. The brief facts of the case are that on 28.10.2010, the complainant had lodged a FIR at Police Station Beawar Sadar, District Ajmer for offences under sections 363, 366, 376 IPC. On 18.2.2013, the case was listed for cross- examination of the prosecutrix. However, according to the petitioner, when his counsel came to the court he suddenly fell ill. Therefore, he moved an application seeking adjournment of the case and for further cross-examination of the prosecutrix. But the learned Judge dismissed the said application and closed the right of cross- examination. Hence, this petition before this court.

3. The learned counsel for the petitioner has vehemently contended that cross-examination is the only means available to an accused to challenge the veracity and trustworthiness of a witness. The right to cross- examination is an essential part of fair trial. Therefore, the learned Judge was not justified in closing the right of cross-examination.

4. Secondly, a bare perusal of the order dated 18.2.2013 itself would show that on many occasions, the testimony of the prosecutrix could not be recorded either due to non - sitting of the Presiding Officer, or due to the strike observed by the lawyers. Neither of these two situations have been caused by the accused-petitioner. Therefore, he cannot be blamed for not having cross-examined the prosecutrix on those dates. Another reason why the testimony of the prosecutrix could not be recorded by the trial court is that 2 the prosecutrixs family had suffered a tragedy- again a reason which could not be attributed to the petitioner. Yet on 18.2.2013, when adjournment was sought on the ground that the counsel for the petitioner was unwell, the said adjournment was denied by the learned trial court and the right to cross-examine was closed. Moreover, according to the learned counsel, the learned Judge has even noted the fact that the counsel comes from Ajmer, and is not a regularly practicing lawyer at Beawar. Yet a valuable right of the accused has been denied by the learned Judge. Hence, the prayer of the learned counsel that the impugned order needs to be interfered with.

5. On the other hand, the learned Public Prosecutor has contended that the case has been hanging fire since 2010. the case is for an offence committed against a woman. Therefore, it should be concluded as soon as possible. Repeatedly, the prosecutrix has appeared before the trial court and has left the court without getting her testimony recorded by the court. In case the prosecutrix is repeatedly asked to appear before the court, it may adversely affect the case of the prosecution. Keeping these factors in mind, the learned Judge was justified, in closing the right of cross-examination.

Heard the learned counsel for the parties and perused the impugned order.

6. The right to a fair trial is not only part of the rule of law, but is also a fundamental right of an accused person under Article 21 of the Constitution of India. One of the elements of fair trial, is the right of the accused to cross-examine the witness. After all the veracity or trustworthiness of the witness is tested on the touchstone of the cross-examination. In the case of Mohd. Hussain @ Zulfikar Ali v. State (Government of NCT of Delhi), 2012(1) WLC (SC) Cri. 303 : (2012) 2 SCC 584 , the Apex Court has observed that "the fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross-examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief. Its purpose is to elicit facts and materials to establish that the evi