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2008 DIGILAW 321 (KAR)

M. S. Chaluvaiah v. M. C. Krishna

2008-06-25

SUBHASH B.ADI

body2008
ORDER Subash B. Adi, J. This revision is directed against the judgment of acquittal in S.C.No.151/2001. 2. Mandya Rural Police charge sheeted the accused for the offence punishable under Sections 143,302 and 201 of IPC. 3. Based on the complaint of one M.S.Chaluvaiah dated 26.5.2001, a case was registered in Crime No.41/2001 for the offence punishable under Sections 143,302 and 201 R/W 149 of IPC. On investigation, the charge sheet was filed. As many as 32 witnesses were cited in the charge sheet. However, the prosecution led the evidence of PW1 to PW19. PW1 and PW2 are the eyewitness, PW4 and PW5 are the panch witnesses, PW6 is the father of the deceased No.1, PW7 is the witness for seizure mahazar, PW8 and PW9 are the witnesses for the inquest, PW1 0 is the mother of deceased No.1, PW11 is the photographer, PW12 is the Police Sub-Inspector who arrested the accused No.4, PW13 is the doctor who conducted the post mortem, PW14 is the photographer, PW15 is the Head Constable, PW16 is the Police Sub-Inspector who arrested accused Yogesh, PW17 is another Head Constable, PW18 is the Police Constable, PW19 is the Investigating Officer who conducted spot mahazar and seized the M.Os. 4. PW1 in his examination-in-chief supported the case of the prosecution interalia stating that, he and his brother had gone to the land to water the sugarcane crop. The deceased Chandrashekar and his son Yogesh were already there to water. Both deceased Chandrashekar as well as his son were sleeping near the pump house. At that time, all the five accused came there. Accused Nos.1 and 2 caught hold of Chandrashekar, accused No.3 assaulted Chandrashekar with spade on his head. Accused Nos.4 and 5 removed the pant of the deceased Chandrashekar and tied it around his neck. Chandrashekar fell on the ground with no movements. Accused No.5 caught hold by holding both legs of Yogesh, lifted him and hit his head to the ground and Y ogesh suffered injury on the head. Thereafter, all the accused took the Chandrashekar’s body to nearby Nala and threw him in the Nala and again they came to the spot and took the body of Yogesh and threw him in the Nala. He further stated that, out of fear, he did notinform the incident to anyone and he informed to his mother not to wake up. Thereafter, all the accused took the Chandrashekar’s body to nearby Nala and threw him in the Nala and again they came to the spot and took the body of Yogesh and threw him in the Nala. He further stated that, out of fear, he did notinform the incident to anyone and he informed to his mother not to wake up. Thereafter, on Sunday morning i.e. on 27.5.2005, he gave the statement to the police. 5. PW2 has turned hostile. Except PWs.1 and 2, no other eyewitness to the incident. Doctor who examined the bodies has stated that, the injury found on the deceased No.1 may be on account of the assault by spade. He has identified the injuries. 6. The Investigating Officer PW9 has stated that, he went to the spot on the next day morning at 11.30 a.m. and conducted a spot mahazar and thereafter he searched for the body and on the next day morning at 8.30 a.m. he found the body in the canal near Shankaregowda’s land and inquest was conducted and body was sent to post mortem. 7. The Trial Court acquitted the accused, as there was no direct evidence to prove the alleged crime. It also observed that, PW1 who supported the prosecution case in the examination-in-chief has turned hostile and PW2 who is another eyewitness is also turned hostile. Even the witnesses to the spot mahazar inquest have also turned hostile. 8. Learned Counsel for the petitioner submitted that, on 18.2.2005, PWs.1 to 5 were examined and Exs.P 1 to P6 and M.Os. 1 to 12 were marked. Thereafter, the matter was posted for cross-examination of PW1. Without assigning any reason, learned Sessions Judge adjourned the matter to 4.3.2005, from 4.3.2005 to 28.3.2005 and from 28.3.2005 to 20.4.2005 and thereafter to 30.5.2005 and to 3.6.2005 and to 8.7.2005. He referred to the Order Sheet dated 8.7.2005 and pointed out that PW1 has stated that, the father of the accused No.1 had threatened his wife that he would commit suicide before his house and in this regard, the Court had 1arned the accused. However he submitted that, because ofthe long gap between the examination-in-chief and cross-examination, PW1 turned hostile. In this regard, he submitted that, the trial once began, has to complete on day to day basis. However he submitted that, because ofthe long gap between the examination-in-chief and cross-examination, PW1 turned hostile. In this regard, he submitted that, the trial once began, has to complete on day to day basis. Further submitted that, the trial has to be conducted as expeditiously as possible by recording the evidence on day to day basis until the examination of all the witnesses is completed. The adjournment should not be beyond the following day for the reasons to be recorded. By referring to Section 309 Cr.P.C. he further submitted that, fact that the evidence of PW1 Was adjourned from 18.2.2005 to 8.7.2005 has given a chance to the accused to win over PW1 and submitted that, the grant of time by Sessions Judge for the cross-examination has vitally affected the fair trial. The very object of conducting trial day to day basis is not only defeated, but it has given chance to the accused to use the said time to win over PW1 by means of muscle power and money power. 9. In this regard, he relied on a decision of the Apex Court in the matter of AMBlKA PRASAD AND ANOTHER Vs. STATE, 2000 Crl.L.J. 810 and submitted that, the mandate of Section 309 of Cr. P.C. of completing the trial by examining the witnesses from day to day and not giving a chance to accused to threaten or win over the witnesses so that they may not support the prosecution. The Apex Court taking judicial notice of the unreasonable delay in recording the prosecution witness has held that, the approach of the Sessions Judge was totally contrary to the provisions of Section 309 of Cr. P. C. 10. He further submitted that, injuries stated by the doctor and the evidence of PW1 who has spoken to the nature of assault, which corroborates with evidence of doctor. 11. Learned Advocate for the accused submitted that, the evidence of PW1 is not acceptable as, PW1 in his evidence has stated that, he saw the incident on the night ensuing between 25.5.2005 and 26.5.2005. The complaint is registered on 26.5.2005 against unknown person. However, in the evidence PW1, he has stated that, he did not inform the incident to anyone and gave the statement only on 27.5.2005 morning. He stated that, the compliant itself was registered on 26.5.2005, but PW1 states that, he gave statement on 27.5.2005. The complaint is registered on 26.5.2005 against unknown person. However, in the evidence PW1, he has stated that, he did not inform the incident to anyone and gave the statement only on 27.5.2005 morning. He stated that, the compliant itself was registered on 26.5.2005, but PW1 states that, he gave statement on 27.5.2005. He further stated that, PW2 has not supported the case of the prosecution. Evidence of PW2 was recorded on the same day. According to the prosecution, PW 1 and PW2 both are the eyewitnesses. He further submitted that, no eyewitnesses to the incident nor there is any circumstantial evidence to prove the alleged crime. In the absence of the evidence, the prosecution has utterly failed to prove the case. There is no error in the judgment of the Sessions Judge acquitting the accused. 12. Learned Government Pleader submitted that, though PWs.1 and 2 are the eyewitnesses, they have turned hostile and submitted that, there are no other witnesses. 13. No doubt, in this case, PW1 and PW2 are the eyewitnesses cited by the prosecution. PWI in examination-in-chief has stated that, he saw the incident and has explained the incident also. He has further stated as to why he did not report the same immediately. When the matter was set down for cross examination of PW1 on 8.7.2005, he has stated that, the accused had threatened him and thereafter he has turned hostile. What is to be noticed in this case is that, though there is I no evidence to convict the accused, however, the way in which the trial is conducted by the Sessions Judge does not inspire the conscious of the Court. 14. Undisputedly, PW1 was examined on 18.2.2005 and he is Prime witness to the incident. When he gave the evidence in examination-in-chief, he has explained the incident and he has stated that, he saw the incident. However, the Sessions Judge had adjourned the matter not once, but he has given 6 adjournments till 8.7.2005 i.e., for a period of nearly 5 months PW1 was not cross-examined. Section 309 of Cr.P.C. contemplates that, the trial once commence, should be completed as expeditiously as possible without any delay. Once recording of the evidence commenced, it should be completed. However, the Sessions Judge had adjourned the matter not once, but he has given 6 adjournments till 8.7.2005 i.e., for a period of nearly 5 months PW1 was not cross-examined. Section 309 of Cr.P.C. contemplates that, the trial once commence, should be completed as expeditiously as possible without any delay. Once recording of the evidence commenced, it should be completed. If that is the object of conducting a trial, the reason behind conducting the day to day trial is to give no chance to the accused or any person to win over the witness and to allow the witnesses to state the facts as they are. In this case, the Sessions Judge for the reasons best known to him and contrary to the provisions of Section 309 of Cr.P.C., has given six adjournments for cross examination ofPWl, who is not only prime witness, but is a eyewitness to the incident, whose evidence is material for the prosecution. 15. The Apex Court in similar circumstances has observed as under; “It is also tobe pointed out that, P.W4-Vikr am Singh (informant) who had lodged FIR immediately was under constant threat and was compelled not to speak the truth despite the fact that he was the brother of deceased. Other witnesses also turned hostile including P.W.6 Prem Singh son of Pratap Singh and P.W.S Rattan Lal, which indicates, as observed by the High Court, that accused party was stronger in terms of money power and muscle power. At this stage, we would observe that the Sessions Judge ought to have followed the mandate of S.309 Cr.P.C. of completing the trial by examining the witnesses from day to day and not giving a chance to accused to threaten or win over the witnesses so that they may not support the prosecution.” 16. In this case, PW1 in the open Court has made a submission on 8.7.2005 that, the father of the accused has threatened that, he would commit suicide before the house ofPW1. This clearly indicates that, there was constant threat and thereafter PW1 has turned hostile. 17. No doubt, now the evidence adduced by the prosecution before the Sessions Judge do not support the case. However, the Sessions Judge who is conducting the trial particularly in relation to serious crime, should have taken utmost care in completing the trial as expeditiously as possible i.e., in the manner as suggested by the Apex Court. 17. No doubt, now the evidence adduced by the prosecution before the Sessions Judge do not support the case. However, the Sessions Judge who is conducting the trial particularly in relation to serious crime, should have taken utmost care in completing the trial as expeditiously as possible i.e., in the manner as suggested by the Apex Court. I do not find there was any justification for the Sessions Judge to adjourn the cross examination of PW1 for six times and allowing five months lapse in between. In the meanwhile what transpired is not i known, but one thing is clear that, PW1 has turned hostile, and for want of evidence, the accused are acquitted. The procedure adopted by the Sessions Judge has really affected the trial.lt is but natural, if the cross examination of prime witness is not done for five months, will certainly allow the accused to manipulate the evidence. Be that as it may, since there is no other witness to support the prosecution case, even if retrial is ordered, it will not serve any purpose, as PW1 has already turned hostile. No reasons to interfere with the judgment of the trial Court. Accordingly, revision fails and dismissed.