[2026:RJ-JD:3071]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 10751/2025 Puroshottam S/o Sohan, Aged About 45 Years, Village Khudala Falna District Pali ----Petitioner Versus

1. State Of Rajasthan, Through PP

2. Amritlal S/o Harbhajan Vaghela, Village Desuri District Pali ----Respondents For Petitioner(s) : Mr. Akshay Singh Rajpurohit For Respondent(s) : Mr. Hanuman Ram Prajapati, PP HON'BLE MR. JUSTICE KULDEEP MATHUR

ORDER

19/01/2026

1. By way of filing the present criminal misc. petition under Section 528 BNSS, the petitioner has prayed for the following reliefs:-

“It is, therefore, most humbly and respectfully prayed that this misc. petition may kindly be allowed and impugned order dated 02.08.2025 passed by the learned court below may kindly be quashed and set aside along with the proceedings in the criminal case no.267/2013. ...”

2. The brief facts giving rise to the present petition are that the counsel representing the petitioner before the learned trial court expired during the course of trial. On account of the said circumstance, the complete cross-examination of witnesses namely Premkumar (P.W.3) and Munnala (P.W.4) could not be recorded, as the then counsel for the accused declined to cross- examine the said witnesses. Consequently, the opportunity to cross-examine them was closed and the evidence was treated as complete.

3. The petitioner moved an application before the learned court below seeking summoning/recalling of the said witnesses for the purpose of cross-examination. However, the learned court below refused to recall the witnesses. Thereafter, the petitioner preferred an application under Section 311 of the Code of Criminal Procedure before the learned court below, which came to be rejected vide order dated 02.08.2025 on the ground that sufficient opportunity had already been granted to the accused to cross-

examine the witnesses, but the same was not availed.

4. Learned counsel for the petitioner submitted that the non- recording of complete cross-examination of P.W.3 Premkumar and P.W.4 Munnala was not deliberate, but occurred due to the unfortunate demise of the counsel who was representing the petitioner before the learned trial court. It was contended that the testimony of the aforesaid witnesses is vital for a just adjudication of the case and denial of opportunity to cross-examine them has resulted in serious prejudice to the defence. It was contended that the learned court below proceeded on technicality in rejecting the application under Section 311 Cr.P.C., whereas the paramount consideration should have been to afford a fair opportunity to the accused to defend himself while keeping in view the factum of death of counsel of the petitioner.

5. Per Contra, learned Public Prosecutor has opposed the petition and submitted that the petitioner was afforded sufficient and repeated opportunities to cross-examine the witnesses, however, the same were consciously not availed. He further submitted that the trial cannot be permitted to be prolonged endlessly at the instance of the accused and the application under Section 311 Cr.P.C. was nothing but an attempt to fill up lacunae in the defence at a belated stage. It was thus prayed that the petition deserves dismissal.

6. Heard learned counsel for the parties and perused the material available on record including the impugned order dated

02.08.2025.

7. Having considered facts and circumstances of the case and upon a perusal of the case file, this Court prima facie finds that it is evident from the record that P.W.3 and P.W.4 were examined in chief and adequate opportunity was granted to the petitioner to cross-examine them. The order sheets reveal that despite such opportunity, the petitioner failed to avail the same, leading to closure of the evidence. Merely because the counsel for the accused chose not to cross-examine the witnesses on the dates fixed, the same cannot be a ground to reopen the evidence as a matter of right.

8. It is