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2007 DIGILAW 823 (MP)

Tejilal v. State of M. P.

2007-07-31

A.K.MISHRA, K.S.CHAUHAN

body2007
ORDER Mishra, J. -- 1. This appeal has been preferred by the accused appellant aggrieved by his conviction and sentence under section 302 IPC for life imprisonment recorded by IIIrd Additional Sessions Judge, Jabalpur in ST No. 410/89 as per judgment dated 8.1.1996. 2. As per the prosecution case, on 24.3.1989 in between 11 a.m. to 5 p.m., Bannu alias Rajkumar, aged about 14 years, was murdered by Tejilal and Smt. Longa Bai. Bannu @ Rajkumar went out of the house' along with Bihari at about 10.30 a.m., when Murari, father of Bannu, made enquiry from Bihari, he stated that he had seen Bannu in the field of Manoj Patel, accused were also there, they were trying to hide something beneath logs of paddy. On removing the logs dead body of Bannu became visible, an intimation was sent through village Kotwar to the concerned police station. Police came to the spot and recorded Dehati Natish and inquest of dead body was prepared. As many as 15 injuries were found on the person of deceased, out of which 13 were incised wound and 2 were lacerated wounds. At the instance of accused, an Axe was seized from the field which was sent to FSL for serological examination, presence of blood was found, other articles were also seized, postmortem was performed. 3. Accused abjured their guilt and contended that they were falsely implicated. The trial Court has given Smt. Longabai benefit of doubt and acquitted her, whereas appellant Tejilal, husband of Smt. Longa Bai has been convicted for commission of aforesaid offence under section 302 IPC. 4. Shri N.P. Dubey, learned counsel appearing for appellant has submitted that in the instant case, 10 has not been examined, investigation made has not been established, Dehati Nalish was a devise to concoct the story and to obtain time to give shape to the prosecution story. Statement of Biharilal (PW 2) fall short of proving the guilt of accused. 4. Shri N.P. Dubey, learned counsel appearing for appellant has submitted that in the instant case, 10 has not been examined, investigation made has not been established, Dehati Nalish was a devise to concoct the story and to obtain time to give shape to the prosecution story. Statement of Biharilal (PW 2) fall short of proving the guilt of accused. It was an error apparent on part of the counsel of accused not to cross-examine the witnesses Biharilal (PW 2) and Murarial (PW 5), it was necessary to cross-examine the aforesaid witnesses on behalf of accused, but counsel due to his mistake did not cross-examine the aforesaid witnesses, it was the duty of the Court also to ensure that certain questions were put so as to explain the circumstances appearing in their examination in chief against the accused. There are several contradictions· which could not be proved due to non cross-examination of aforesaid witnesses that has resulted failure of justice in the instant case. Counsel has prayed for remitting the case to trial Court to give an opportunity to cross-examine the aforesaid witnesses. 5. Shri T.K. Modh, learned Dy. AG appearing for State has supported the conviction recorded by the Court below, alternatively he has submitted that as 10 has not been examined in the instant case, prosecution evidence has been illegally closed by the trial Court, he had taken this Court to the various order sheets of the trial Court. He has submitted that two witnesses were examined on behalf of prosecution on 30.10.1995, namely, Bhagwandas and Manoj Patel, on this date the trial Court had fixed the case on 4.12.1995 for recording of evidence of M.K. Singh and D.K. Shakalye. The order sheet dated 4.12.1995 indicates that summons sent to M. K. Singh, 10 was not received back by the Court even though the summons was not received back, evidence of prosecution was closed, thus, 10 could not be examined in the instant case so as to prove the investigation made by him, there was no fault on part of the prosecution. The evidence of prosecution was closed in undue haste by the trial Court. 6. The evidence of prosecution was closed in undue haste by the trial Court. 6. With respect to appellant Tejilal, we find that interest of justice requires that not only an opportunity to cross-examine aforesaid two witnesses be afforded to the accused/appellant, but also an opportunity deserves to be given to prosecution to examine Shri M.K. Singh, 10. We find the prayer made by the counsel for appellant as well as Shri Modh appearing for State to be just and proper, interest of justice requires that an opportunity be afforded to the respective parties as prayed. Reading of statement of Biharilal (PW 2) and Murarilal (PW 5) indicates that certain circumstances they have pointed out were material on which cross-examination was necessary to be made on behalf of accused but cross examination was not made at all by the counsel for the reasons best known to him. We have also gone through the various documents and it was necessary to contradict the aforesaid witnesses with their initial versions, but due to mistake of counsel, interest of justice may not suffer and it appears necessary to bring out truth on record even though the case is an old one, 18 years have passed by now, but due to aforesaid blunder, we deem it desirable to afford an opportunity to the defence to cross-examine the witnesses as no cross-examination at all was made in the instant case by the counsel, it was the duty of the Court to ensure that no person is convicted due to fault of counsel. We have no hesitation in observing that counsel appearing for accused/appellant has failed to discharge his duty towards his client because it was necessary for him to cross-examine the aforesaid two witnesses as to the circumstances appearing against them, but he wrongly declared that no cross-examination at all was necessary of the aforesaid witnesses. We would not have afforded an opportunity had it been a case that some cross-examination had been made as to circumstances against accused appellant. Not doing any kind of cross-examination by the counsel on the aforesaid witnesses was clearly a blunder committed. No person should be convicted due to such a flaw. We would not have afforded an opportunity had it been a case that some cross-examination had been made as to circumstances against accused appellant. Not doing any kind of cross-examination by the counsel on the aforesaid witnesses was clearly a blunder committed. No person should be convicted due to such a flaw. Proper and efficient legal assistance is one of the parameters ensuring right of fair trial, in order to afford fair trial, we deem it appropriate to give an opportunity to the appellant Tejilal to cross-examine the aforesaid two witnesses. 7. We also find equally true the grievance raised by Shri Modh that when two witnesses were examined by the prosecution on 30.10.1995, namely, Bhagwandas and Manoj Patel and they were discharged, it was only thereafter IO could have been examined, it appears that the trial Court had concluded in undue haste and on the next date when the summon sent to Shri M. K. Singh had not been received back, the evidence of prosecution was dosed. It is not a case where summon was served and witness was not present, it was the duty of trial Court that witness was duly served and his presence was secured that was not done. Thus, evidence of prosecution had been illegally closed by trial Court on 4.12.1995. Consequently, we find that prosecution also deserves an opportunity to examine Shri M.K. Singh, I.O. 8. Thus, we direct that record of the case be remitted to the trial Court for permitting the accused to cross-examine the two witnesses, namely, Biharilal (PW 2) and Murarilal (PW 5), and to examine IO M.K. Singh and thereafter to send back the evidence so recorded to this Court in accordance with the provisions of section 391 of CrPC. Let parties to be present before the trial Court on September 17th, 2007. Accused Tejilal be produced from jail as it is stated by Shri Dubey, learned counsel appearing for appellant that accused is in jail at present. The evidence be recorded as far as possible within a period of four months from the date of first appearance of parties. 9. Appeal be listed thereafter, it is not to be treated as heard in part.