Full Judgment
R.L. Narasimham, C.J.
1. This is a revision petition against the appellate judgment of the Sessions Judge of Jeypore maintaining the conviction of the petitioners under Section 379 I. P. C. and the sentence of three months rigorous imprisonment and fine of Rs. 50/- passed by the First Class Magistrate of Rayaghada.
2. The charge against the petitioner was that he committed theft of one gold 'Kasu' on 19-10-58 by snatching it away from the neck of the daughter of P. W. 1. a goldsmith of Rayagada town. The guilty removal was said to have been witnessed by two children Pws. 2 and 3 aged 10 and 8 years respectively. Though charge sheet was submitted on 1-11-58 for some reason or other the trial did not commence till 4-3-59. On that day 4 prosecution witnesses including the two important eye witnesses namely Pws. 2 and 3 were examined in chief.
The defence lawyer asked for time to cross examine them as he was not feeling well that day, but the learned Magistrate refused to give him time saying that he had already cross examined other witnesses and then he discharged the two eye-witnesses saying that cross examination was declined. After the examination of the accused, when the defence evidence was taken up on 7-4-59 the Pleader for the accused again tiled a petition under section 257 Cr. P. C. for recalling Pws. 2 and 3 for cross examination. This request was also refused and the case was disposed of.
3. Though expeditious disposal of long pending cases is eminently desirable, nevertheless, such disposal should not be done against the fundamental principles of criminal jurisprudence. The evidence of the eye-witnesses on whose testimony the entire prosecution case rests should be tested by cross examination before a conviction can be sustained. For that purpose adequate opportunities should be given to the accused.
The illness of the lawyer for the accused is always a good ground for granting adjournment. Hence, when on 4-3-59 the lawyer for the defence stated that he was not feeling well and wanted an adjournment with a view to enable him to cross-examine Pws. 2 and 3 the Magistrate should have given such an adjournment by exercising his discretion properly. But even if on that day he failed to exercise his discretion he could have resummoned them later, on 7-4-59 under Section 257 Cr. P. C. when such a request was made by the lawyer for the accused. This also was not done with the result that the petitioner has been convicted on the evidence of Pws. 2 and 3 which was not tested by cross-examination.
4. Such a conviction cannot be sustained. I would therefore set aside the conviction and sentence and direct the trying magistrate or his successor-in-office as may be decided by the Sub-divisional Magistrate to rehear the case from the stage at which it was on 7-4-59. Steps should be taken to summon P. Ws. 2 and 3 under Section 257 Cr. P. C. for the purpose of cross-examination by the petitioner and then the Magistrate may further examine the accused-petitioner under Section 342 Cr. P. C., give him an opportunity to adduce defence and then dispose of the case according to law. The prosecution will not be permitted to adduce any additional evidence.
5. The revision petition is disposed of accordingly. (Retrial ordered).