Recall of eyewitness ordered after murder accused had to cross-examine without lawyer: Rajasthan HC

Jodhpur: The Rajasthan High Court has ordered the recall of a prosecution eyewitness in a murder trial. An accused who had to cross-examine a key witness without his lawyer, the Court ruled, was never given a genuine opportunity to defend himself. Justice Farjand Ali passed this order on 9 April 2026, setting aside a ruling by the Additional Sessions Judge No. 3, Chittorgarh that had declined to recall the witness.

Bhupendra Singh alias Tammu Singh faces a murder charge in Sessions Case No. 165/2023 before the Additional Sessions Judge in Chittorgarh. On 23 April 2024, the prosecution examined PW-9 Rajesh Lal, an eyewitness to the alleged offence. When the time came for the defence to cross-examine this witness, Singh’s counsel was absent from court. With no legal training of his own, Singh was left to question the eyewitness himself. The cross-examination that followed was, as the Court later found, perfunctory and without effect.

Singh then applied under Section 348 of the BNSS — which allows a court to recall a witness for further examination — seeking a proper chance to cross-examine Rajesh Lal through counsel. The Additional Sessions Judge rejected this application on 10 February 2026. Singh challenged that order before the High Court.

Counsel for Singh submitted that the cross-examination conducted on 23 April 2024 was worthless as a defence exercise. A person without legal training cannot probe inconsistencies in testimony or test the credibility of a witness the way a lawyer can. In a case where Singh potentially faces the death penalty, this failure amounted to a denial of the right to a fair trial.

The State argued that Singh had formally been given an opportunity to cross-examine PW-9 on the day the witness testified. The absence of his lawyer on that date, it contended, did not invalidate that opportunity.

Justice Farjand Ali rejected the trial court’s approach as excessively technical. The judge began from first principles: the right to cross-examine a material witness is not a procedural formality. It is, the Court held, “the very marrow of a fair trial, deeply embedded within the guarantees of natural justice and due process.” That meant the court had to look at whether the cross-examination was real — not merely whether an opportunity had formally been offered.

The Court found that the opportunity given to Singh had “in substance, stood vitiated by circumstances beyond the control of the accused.” What followed was not a real cross-examination. To treat it as complete and adequate would, the Court said, “elevate form over substance and reduce the concept of fair trial to a hollow incantation.”

The Court was especially firm because Singh faces a murder charge, where capital punishment is possible. In such grave matters, courts must take “a liberal and justice-oriented approach,” ensuring no prejudice — however inadvertent — falls on the accused. Denying Singh an effective cross-examination of the eyewitness would, the Court held, “strike at the very root of the adjudicatory process.”

Justice Ali also weighed the inconvenience to the witness against the prejudice to the accused. “The irreversible prejudice to the accused, if denied an opportunity of effective cross-examination, cannot be countenanced,” he observed. Costs could compensate the witness for the inconvenience of returning to court — but nothing could undo the harm of an unfair trial.

The Court noted that Singh’s request was bona fide. He had not sought repeated adjournments or deployed delay tactics. The recall application arose from a genuine and legitimate defence necessity. The impugned order, the Court concluded, “suffers from an overly technical approach, thereby occasioning failure of justice.”

The High Court allowed the petition and quashed the Additional Sessions Judge’s order of 10 February 2026. The trial court has been directed to issue process to secure the presence of PW-9 Rajesh Lal for cross-examination. When Rajesh Lal appears, the cross-examination must be completed on that same day — no adjournment will be granted and the opportunity will stand exhausted. Questions must remain relevant and material; scandalous, vexatious, or unnecessarily prolonged questioning will not be permitted. Before the cross-examination begins, Bhupendra Singh must deposit Rs. 5,000 with the trial court, to be paid to PW-9 as compensation for the inconvenience of his recall.