The Delhi High Court on Wednesday allowed recall of 13 prosecution witnesses, including the victim in the Uber cab rape case, on the plea of the accused driver and said their cross examination will be carried out on a day-to-day basis.
Justice Sunita Gupta partly allowed the plea of accused Shiv Kumar Yadav, who had allegedly raped the 25-year-old woman executive in December last year, while making it clear “not to repeat any question which has already been put to the witnesses in their cross examination by the earlier counsel”.
Apart from the victim, the court also allowed recall of the investigating officers as well as some of the doctors who had examined the victim as well as the accused, saying it was necessary for “ensuring a fair trial”.
“.... In view of the circumstances narrated by counsel for the petitioner, for ensuring fair trial, it is deemed proper to recall certain witnesses. That being so, in the interest of justice, the petition is partly allowed. Prosecution witnesses no. 2, 3, 4, 9, 12, 13, 14, 16, 20, 22, 24, 26, 27 be recalled for the purpose of further cross examination,” the court said.
“Needless to say, it is impressed upon the counsel for the petitioner not to repeat any question which has already been put to the witnesses in their cross examination by the earlier counsel. Furthermore, no adjournment will be sought by him on any ground whatsoever. Keeping in view the mandate of section 309 CrPC (power to postpone or adjourn proceedings), the cross examination will be conducted on day-to-day basis,” the court said.
It also clarified “that in case for any reason any witness is not available for the purpose of further cross examination, his/her testimony shall be read in evidence as it is,” and disposed of the petition.
While partly allowing the accused's plea, the court also said that if he adopts any delaying tactics “only he would suffer” as he is in custody.
The court directed the accused to appear before the trial court on Wednesday at 2 pm “and a date will be fixed by Additional Sessions Judge for recalling the aforesaid witnesses for the purpose of cross examination and thereafter the matter be proceeded in accordance with law”.
As per the charge sheet filed by the Delhi Police, the incident took place on the night of December 5 last year when the victim, who was working for a finance company in Gurgaon, was headed back home.
She had taken the taxi from Vasant Vihar to go to her house in Inderlok and the accused after taking another route, raped her, police said.
The high court had on February 25 reserved its order on 32-year-old Yadav's plea and had directed the trial court not to pronounce its verdict till Wednesday.
Yadav, through his lawyer D K Mishra had sought recall of the 28 prosecution witnesses on the ground that the earlier defence counsel was “incompetent”.
Mishra had later restricted the list of witnesses he wished to recall to 13, including the victim, who he alleged had improved upon her statements.
He had also alleged that crucial evidence, including DNA samples and sexual assault kits, had been planted and tampered with.
Advocate Rajesh Mahajan, appearing for Delhi Police, had opposed the plea saying if it is allowed, it will amount to a re-trial.
Earlier, the high court had refused to stay the ongoing proceedings before a trial court in New Delhi in the case after Mishra requested the bench that till his plea to recall witnesses to re-examine them is pending before it, the ongoing final arguments be stayed.
The trial court had on February 18 rejected Yadav's plea for recalling witnesses saying there was no change in circumstances except for a change of counsel, which was no ground to allow the application.
The trial in the case had commenced on January 15 and the prosecution had concluded recording its evidence in 17 days by examining 28 witnesses. The accused had not examined any witness in his defence.
The trial court had also recorded the testimony of the accused in which he termed the charge against him as “false”.
The court on January 13 had framed charges against Yadav under various sections of the IPC for alleged offences of endangering a woman's life while raping her, kidnapping with intent to compel her for marriage, criminally intimidating and causing hurt.
