ORDER

The appellant is accused No.5 in SplSC.No.64 of 2020 on the file of the Special Court for Trial of Cases under SC/ ST (POA) Act, Theni. The appellant along with four others is facing trial for the offence under Sections 147,148, 294(b), 323, 324, 506(2) IPC and under Setions 3(1)(r), 3(1)(s) and 3(1)(va) of the SC/ST (POA) Act. The trial commenced on 14.5.2022. PW1 was examined in chief on 14.05.2022. However, he was not cross examined by the accused. Thereafter the prosecution examined PW2 to PW10. The case was posted for examination of LW.1, LW13, and LW14. At this stage, the appellant /accused No.5 has filed an application before the trial court in CRMP No.1129 of 2024 under section 348 of BNSS for recalling PW1 for the purpose of cross examination and the application was dismissed by the trial court considering the conduct of the appellant in delaying the process of trial by not cross examining PW1, who was very much available for cross examination on 14.05.2022 and the conduct of filing the application on 14.12.2024 after a period of 2 ½ years. The trial court while dismissing the application filed by this appellant has also taken note of the fact that other witnesses PW 2 to PW4 turned hostile during the trial. Aggrieved over that order, the present criminal appeal has been filed by accused No.5.

2.The learned counsel for the appellant submits that they were expecting certain documents to disprove the case of the prosecution that the accused was not present at the time of occurrence and in collecting those documents there was some deley. Therefore they have not disclosed their defence and they have not cross examined the witness on that day. There is no intentional delay in filing the application to recall the wintess and only due to the bondafide reason the delay had occurred.

3.The learned Government Advocate (Crl Side) appeairng for the State by referring the orders of the trial court submits that PW1 was not cross examined by the appellant intentionally, in order to gain over PW1. He has also pointed out that the witnesses PW2 to PW4 turned hostile during the trial. The appellant is not having any valid reason for filing this application to recall the witness after a period of 2 ½ years and therefore this appeal is liable to be dismissed.

4. This court considered the rival submissions made and perused the materials placed on record.

5.The appellant is facing trial for offence under Sections 147,148, 294(b), 323, 324, 506(2) IPC and under Setions 3(1)(r), 3(1)(s) and 3(1)(va) of the SC/ST (POA) Act. The trial has commenced and the prosecution has examined 10 witnesses. PW1 is the main witness and also the defecto complainant. The appelalnt claims that if he is not provided with an opportunity to cross examine PW1, certainly it would affect his case before the trial court.

6. Considering the charges being faced by the petitioner, this court is inclined to allow this application. However, considering the attitude of the appellant in filing the application to recall the witnesses, after a period of 2½ years, the appeal is allowed with a cost of Rs. 10,000/- (Rupees Ten Thousand), which shall be paid to the welfare of the study cetre maintained by the Madurai Corporation [Account No.110197467504 A/c.Name:

Commissioner Madurai Corporation, Canara Bank, Arigna Anna Malaigai, Madurai].

7.On production of receipt of payment of cost, the trial Court shall entertain the application for recalling PW1 and fix the date for appearance of the PW1 for cross examination. The trial Court shall also inform the other accused that if they want to cross examine PW1 on the particular day, they can cross examine PW1 and failing which they may not have any further opportunity for cross examination. The trial court shall appreciate the evidence of PW1 in chief as well as in cross examination while deciding the trial.

27-02-2025 DSK To

1.The Deputy Superintendent of Police, Bodi Sub Division, Kurangani Police station, Theni district.

2.The Sessions