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RADHA SHYAM JENASHIBASHISH MISRA

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CASE NO.:

Appeal (crl.) 704 of 2009

PETITIONER:

STATE OF ORISSA

RESPONDENT:

PRASANNA KUMAR MOHANTY

DATE OF JUDGMENT: 09/04/2009

BENCH:

S.B. SINHA & DR. MUKUNDAKAM SHARMA

JUDGMENT:

JUDGMENT

The following Order of the Court was delivered:

ORDER

Delay condoned.

Leave granted.

We have heard learned counsel for the parties.

The prosecution against the respondent herein was initiated in the year

1987. The Investigating Officer Bipin Behari Mahapatra was examination-in-

Chief on 1.9.1999. Unfortunately, on that date he could not be cross

examined as respondent herein had filed two Criminal Miscellaneous

Applications before the High Court although the learned Special Judge

proceeded on the basis that the cross examination would be treated to have

been declined. He was also present in Court on 15.1.2003 and 7.8.2003. By

an Order dated 7.8.2003, however, on an application filed by the defence,

the said Bipin Behari Mahapatra was recalled for cross examination. The

matter was adjourned to 12.9.2003 on which date he was directed to remain

present.

It, however, appears that although the matter for further hearing was fixed

from 12.9.2003 till 18.8.2006 no prosecution witness including the said

investigating officer was present in the Court. The learned Special Judge

went on issuing summons for his appearance so that he could be cross

examined by the defence. Only on 18.8.2006, the learned Court’s attention

was drawn on an endorsement to the summons that he would not be able to

attend the Court due to his illness. On and about 8.1.2007, an application

was filed by the special Public Prosecutor to exonerate Mr. Mohapatra from

cross examination on the ground of his illness. By reason of his order

dated 24.3.2007 the learned Special Judge, however, directed as under :-

"From the aforesaid circumstances, it is thus seen that the defence did not

take steps for cross-examination of P.W.9 on closure of this evidence in

Chief on 10.9.1999. Vigilance took adjournment to procure attendance of

P.W.9 on the ground of his illness and ultimately report is received that

P.W.9 being aged 75 years due to prolong illness is not in a position to

move and understand things having lost memory. No doubt it is necessary to

cross examine the witness to assess his veracity and without cross examine

the defence looses his valuable rights. But in the present case when P.W.9

due to old age and prolonged illness has lost his memory and unable to

understand things no fruitful purpose would be served to insist for his

attendance or to depute commission for his cross-examination in a case of

this nature. Hence it is needless to insist upon the attendance of P.W.9

for his cross examination. However, the veracity of his evidence in chief

shall be assessed with reference to other materials on record during final

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argument of the case. Accordingly, the petition filed on behalf of Special

P.P. Vigilance is disposed of."

The respondent filed an application under Section 482 of the Criminal

Procedure Code there against before the High Court. The High Court, while

relying upon a decision of this Court in Gopal Saran vs. Satyanarayan

reported in 1989 (3) SCC 56 held as under :-

"In view of what has been decided in the above reported cases, it is clear

that when a witness does not make himself available for being cross-

examined after his examination-in-Chief, it will be difficult on the part

of a Court to rely on his evidence in examination-in-Chief. The purpose of

cross-examination of a witness is to test the veracity of the statement

made by a witness in his examination-in-Chief and where a witness is not

cross examined, for his non availability it will be unsafe to reply on

examination in chief of such a witness."

Mr. Radha Shyam Jena, learned counsel appearing on behalf of the appellant-

State submits that keeping in view the fact that P.W.9 was available for

cr