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2008 DIGILAW 331 (BOM)

Premchand Nimba Sapkale v. State of Maharashtra

2008-02-28

NARESH H.PATIL, P.R.BORKAR

body2008
Judgment 1. The appellant - Premchand Nimba Sapkale was convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/-, in default to suffer imprisonment for ten months, on 30.12.2005 by the learned II Adhoc Additional Sessions Judge, Jalgaon, in Sessions Case No. 54 of 2005. 2. The prosecution alleged that the appellant assaulted deceased - Gokul Goba Sonwane, resident of village Sujade, Taluka and District Jalgaon on 30.11.2004 in Sarafa Bazar area of Jalgaon town at about. 12.00 noon with the help of sword. The complaint was lodged by son of deceased - (pw1) Vijay Sonwane at Shani Peth police station, Jalgaon. On the same day at about 13.30 hours offence came to be registered at C.R.No. 63 of 2004 under Sections 302, 307 of the Indian Penal Code, as prosecution alleges that the appellant stabbed his wife (pw9) Pramila who was working in the field of Nana Kale in Mamurabad shivar on the same day. The investigation was entrusted to the then Sub Divisional Police Officer - (pw15) Manoj Lohar. The investigating officer, after completion of investigation, filed chargesheet against the appellant. The case was committed to the Sessions Court for trial on 7.6.2005. The Trial Court framed charge against the appellant, to which he pleaded not guilty. The appellant was provided with the assistance of a lawyer at the Government cost. 3. The prosecution examined 15 witnesses, out of which (pw8) Santosh Sapkale and (pw10) Ratilal Kate were examined as eye witnesses. (Pw10) Ratilal Kate was to be examined in the month of July, 2005 by the learned Additional Public Prosecutor, Jalgaon, but an application 22.7.2005 was filed by the learned Additional Public Prosecutor stating therein that (pw10) Ratilal was ill and that he was unable to attend the Court and, therefore, fresh summons was sought against him. It was further contended that witness Pramila remained absent though summons was served on her and, therefore, bailable warrant was sought to be issued to obtain her presence. By an order dated 22.7.2002, the Court allowed the said application and issued summons to (pw10) Ratilal and bailable warrant for Rs. 1,000/- against Pramila. Learned Additional Public Prosecutor had filed certificate of Dr. By an order dated 22.7.2002, the Court allowed the said application and issued summons to (pw10) Ratilal and bailable warrant for Rs. 1,000/- against Pramila. Learned Additional Public Prosecutor had filed certificate of Dr. Vikas Choudhary dated 22.2.2005 certifying therein that Ratilal Laxman Kate was under treatment for Influenza and was advised rest for 5 days with effect from 22.7.2005. (Pw10) Ratilal was put into box for examination-in-chief by the learned Additional Public Prosecutor on 5.9.2005. For some time his examination-in-chief was recorded, but then it was found that the witness was not feeling well. On the same day, the Court passed an order/endorsement, which reads : " At this stage, the witness started singing in loud voice and started jumping and uncontrollable by two persons, hence his examination-in-chief is deferred. He appears to be not of normal state of mind. Hence, A.P.P. prayed for discharging the witness. Sd/- (R.D.Tayade), IInd Adhoc Addl. Sessions Dated : 5.9.2005. Judge, Jalgaon. " The Marathi version of this order is quite different. Reading of the same indicates that on the request of the learned Additional Public Prosecutor the witness (pw10) Ratilal was discharged as the witness was mentally affected. 4. The next eye witness was (pw8) Santosh Sapkale, who was examined on behalf of the State. As regards allegation made against the appellant for assaulting his wife, the Trial Court acquitted the accused from the charge of offence punishable under Section 307 of the Indian Penal Code. We need not deal with that part of the evidence. 5. We have perused the original chargesheet and we find that statements of at least three persons, namely, Dhananjay Ramdas Navgale, Bhagatsing Govardhandas Vaidya and Prakash Namdeo Kamble were recorded by police on 30.11.2004, but they were not examined by the State. Reading their statements, we find that they claimed that they would identify the appellant by seeing the photograph. It is curious to note that their statements were recorded on the same day of the alleged incident. Apart from these statements some other statements were recorded by the police. The incident is alleged to have taken place in busy market place of Jalgaon town in the broad day light. The location is such that several shops surround the spot of the incident. Apart from these statements some other statements were recorded by the police. The incident is alleged to have taken place in busy market place of Jalgaon town in the broad day light. The location is such that several shops surround the spot of the incident. The police have recorded statements of some of the persons who are carrying on their business in the close proximity from the spot of the incident. The incident is alleged to have taken place near a Jeweller’s shop and utensils shop. We may not deal any further the evidence of the prosecution case. 6. We are not convinced, in the manner in which (pw10) Ratilal, who was to be examined as an eye witness, was discharged by the Court on the request made by the learned Additional Public Prosecutor. (Pw10) Ratilal is a person who is said to have accompanied the deceased from his village upto the Jeweller’s shop. In this background, the evidence of (pw10) Ratilal assumes importance and significance for doing complete justice. In fairness, it was necessary that appropriate care and caution was taken by the Trial Court in permitting discharge of (pw10) Ratilal. 7. We do not find any material on record wherefrom it could be ascertained that the Trial Court was convinced that (pw10) Ratilal was mentally unfit to depose before the Court. Neither the Trial Court made any efforts to put certain questions to elicit from the witness his mental condition, nor (pw10) Ratilal was directed to be examined by the competent medical officer. We are surprised regarding the manner in which request was made by the learned Additional Public Prosecutor for discharging (pw10) Ratilal. It seems that learned Additioal Public Prosecutor made an oral request to the Court for discharging the witness without placing before the Court any convincing evidence to the effect that (pw10) Ratilal was unfit to depose as a witness before the Court. 8. After going through the entire evidence with the assistance of learned counsel for the appellant and learned Additional Public Prosecutor for the State, we are convinced that proper care ought to have been taken by the Trial Court for ascertaining whether (pw10) Ratilal was fit to depose before the Court and if he was found fit, the Court ought to have recorded his evidence. The Trial Court could have exercised power under appropriate provisions of the Criminal Procedure Code for directing examination of the said witness. 9. The appellant, who is said to have suffered life sentence earlier in different crime, was made to stand for trial in this case for a serious offence. We find that in the present scenario the provisions of Section 311 of the Criminal Procedure Code would be of much relevance. 10. The Apex Court in the case of Zahira Habibulla H. Sheikh and another vs State of Gujarat and others [2004 Cri.L.J.2050] observed in para 38 : " This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice -- often referred to as the duty to vindicate and uphold the ’majesty of the law’. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in rational to proceedings, even if a fair trial is till possible, except at the risk of undermining the fair name and standing of the Judges or impartial and independent adjudicators. " 11. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in rational to proceedings, even if a fair trial is till possible, except at the risk of undermining the fair name and standing of the Judges or impartial and independent adjudicators. " 11. In the case of Mohanlal Shamji Soni vs Union of India and another [ AIR 1991 SC 1346 ], the Apex Court while dealing with the provisions of Section 311 of the Criminal Procedure Code observed : " It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and goo sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case. " 12. In view of the facts of the case, evidence brought on record, we are of the considered opinion that the State has not shown required diligence in prosecuting the cause and placing before the Court the required evidence for doing justice. We are, therefore, inclined to remand the matter back to the Trial Court. 13. The State shall verify the fitness of (pw10) Ratilal Laxman Kate and place it’s report before the Trial Court. In the facts of this case, we find it desirable to examine the witnesses cited in the chargesheet, more particularly the persons like, Bhagatsing Govardhan Vaidya, Dhananjay Ramdas Navgale and Prakash Namdeo Kamble, which would help the Court in doing justice. 14. In case the State fails to examine the witnesses on behalf of the prosecution, then we direct the Trial Court to exercise its powers under Section 311 of the Criminal Procedure Code to summon these witnesses for the purpose of examination. Obviously, before examining (pw10) Ratilal the Court shall be convinced that he is mentally fit to depose before the Court. The Court is entitled to call for independent medical report regarding mental fitness of (pw10) Ratilal to depose before the Court. 15. Obviously, before examining (pw10) Ratilal the Court shall be convinced that he is mentally fit to depose before the Court. The Court is entitled to call for independent medical report regarding mental fitness of (pw10) Ratilal to depose before the Court. 15. We, therefore, quash and set aside the judgment and order delivered on 30.12.2005 in Sessions Case No. 54 of 2005 by the learned II Adhoc Additional Sessions Judge, Jalgaon and remand the matter back to the Trial Court. The learned Sessions Judge, Jalgaon shall forthwith pass appropriate orders of assignment of the Sessions Case for holding trial expeditiously. The evidence already recorded by the Trial Court shall be read in evidence after remand. The appellant would be entitled to cross-examine the witnesses who would be examined afresh after remand. The appellant would be entitled to lead evidence in defence if he chooses to do so. 16. The Principal Secretary, Law and Judiciary Department, Government of Maharashtra, Mumbai shall issue necessary directions to the Public Prosecutor, Jalgaon that he may conduct the trial himself or assign to any other Additional Public Prosecutor than the Additional Public Prosecutor who conducted the trial earlier, in fairness to the parties. The Additional Public Prosecutor and the Registry to forward the copy of this order to the Principal Secretary, Law and Judiciary Department, Government of Maharashtra, Mumbai. Record and proceedings be sent back forthwith to the Trial Court. 17. The appellant shall be tried for the offence punishable under Section 302 of the Indian Penal Code only. The appeal is partly allowed.