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2011 DIGILAW 1782 (RAJ)

Mahendra Singh v. State of Rajasthan through PP

2011-08-23

R.S.CHAUHAN

body2011
Hon'ble CHAUHAN, J.—The petitioner is aggrieved by the judgment dated 30.4.202 passed by the Additional Chief Judicial Magistrate (Railways) Ajmer, whereby the learned Magistrate has convicted the petitioner for offences under Section 392 IPC and Section 145 of the Railways Act. For the former offence, he has sentenced the petitioner to one year of R.I., and has imposed a fine of Rs. 2000/- and has further directed the petitioner to undergo three months of R.I., in default thereof. For the latter offence, the petitioner has been sentenced to six months of S.I., and has been imposed with a fine of Rs. 500/- and has been directed to further undergo one month S.I., in default thereof. The petitioner is also aggrieved by the judgment dated 10.7.2003, passed by the Additional Sessions Judge No.2, Ajmer whereby the learned Judge has reduced the petitioner's sentence to "as undergone" and has reduced his fine for offence under Section 392 IPC from Rs. 2,000/- to Rs. 1,000/- and also reduced fine from Rs. 500/- to Rs. 200/- for offence under Section 145 of the Railways Act. However, the learned Judge has directed the petitioner to undergo fifteen days of simple imprisonment in default of payment of fine. 2. The brief facts of the case are that on 2.7.1995, Tejaram (P.W.8), Mohd. Hanif (P.W.1) and Bashir Ali (P.W.2) lodged a report at Railway Police Station, Ajmer. In the said report, it was alleged that on 1.7.1995 they are coming from Ahmedabad to Ajmer. When the train reached at Sendhra Station, the petitioner came there and told that the complainant and others were travelling in a women's compartment. He asked for their tickets. He asked for money. While the train started, the petitioner slapped Tejaram and snatched money and ticket from him. The Railway Police lodged a criminal case under Section 392 IPC. The accused petitioner was arrested at Ajmer Railway Station. 3. In order to support its case, the prosecution has examined eight witnesses and produced some documents. The statement of the accused-petitioner was recorded under Section 313 Cr.P.C. After hearing both the sides, vide judgment dated 30.4.2002, the learned Chief Judicial Magistrate convicted the petitioner for the offences as mentioned above. Being aggrieved by the said judgment, the petitioner filed an appeal before the Sessions Judge, Ajmer. The case was committed for disposal of he appeal to the Additional Sessions Judge No.2, Ajmer. Being aggrieved by the said judgment, the petitioner filed an appeal before the Sessions Judge, Ajmer. The case was committed for disposal of he appeal to the Additional Sessions Judge No.2, Ajmer. Vide judgment dated 10.7.2003, the learned Judge has reduced the fine and sentences as mentioned above. Still being aggrieved, the petitioner has preferred this petition. 4. The learned counsel for the petitioner has contended that the com-plainant Tejaram (P.W.8) has turned hostile and has not supported the case of the prosecution. Similarly Mohd. Hanif (P.W.1) and Bashir Ali (P.W.2), the two eye-witnesses, in the case, have equally turned hostile. Yet, the learned trial Court has convicted the petitioner for the aforementioned offences. 5. The learned counsel for the petitioner has desperately tried to argue that he testimonies of some of the witnesses were recorded when the petitioner had absconded during the course of trial. Therefore, no opportunity of cross-examining the witnesses was given to him. Hence, the mandatory provisions of Section 273 Cr.P.C., has been violated. In order to buttress this contention, the learned counsel has relied upon the cases of Banchhanidhi Singh @ Nani Singh vs. State of Orissa (1990 Cri.L.J. 397) and Bal Kishan vs. State of Rajasthan (1997 Law Suit (Raj.) 104). 6. On the other hand, the learned Public Prosecutor has contended that merely because the eye-witnesses have turned hostile, it does not mean that their entire testimony should be discarded. The testimony of hostile witnesses should be accepted to the extent that it supports the prosecution case. According to the learned Public Prosecutor, the complainant in his cross-examination has already stated that he has entered into a compromise with the accused petitioner. Thus, obviously he had turned hostile during he course of trial. However, Tejaram (P.W.8), Mohd. Hanif (P.W.1) and Bashir Ali (P.W.2) have supported the prosecution case to a great extent. Hence, the learned Judge was certainly justified in convicting the present petitioner. Lastly, the learned Judge has also noticed that other witnesses and documents have also buttressed the case of the prosecution. Hence, the learned Public Prosecutor has supported the impugned judgments. 7. Heard the learned counsel for the parties and perused the impugned judgments as well as the record produced before this Court. 8. It is, indeed, a settled principle of criminal jurisprudence that merely because a witness has turned hostile, his evidence cannot be discarded in toto. Hence, the learned Public Prosecutor has supported the impugned judgments. 7. Heard the learned counsel for the parties and perused the impugned judgments as well as the record produced before this Court. 8. It is, indeed, a settled principle of criminal jurisprudence that merely because a witness has turned hostile, his evidence cannot be discarded in toto. It can be accepted to the limited extent that he/she supports he case of the prosecution. In the present case, Tejaram (P.W.8) has clearly admitted, in his cross-examination, that he has entered into a compromise with the accused. Thus, it is not surprising that he has turned hostile during the course of trial. However, in his examination-in-chief he does admit that while he was travelling from Ahmedabad to Ajmer, few persons had entered the boggy and had demanded his ticket and money from him. He further alleges that he was slapped by a person. He further identifies the accused person in the Court as he culprit. It is only with regard to the articles seized that he does not support the case of the prosecution. Since the complainant has identified the petitioner, since he has clearly stated that it is he who had slapped and taken the money from him, obviously the offence under Section 392 IPC is made out. Moreover, even Mohd. Hanif (P.W.1) and Bashir Ali (P.W.2) had supported the case of the prosecution as far as the incident in the train was concerned. In their examination-in-chief they do not support the case of the prosecution with regard to he articles produced. Thus, they were declared as hostile witness. Hence, the learned trial Court was legally justified in relying on the evidence of the hostile witness to the extent they supported the prosecution case. Section 273 Cr.P.C., is as under : "273. Evidence to be taken in presence of accused.—Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in he presence of the pleader." Explanation.—In this section, "accused" includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code. 9. The said provision begins with exceptional clause. Thus, in the circumstances expected under the Code, the evidence can be recorded in the absence of the accused. 9. The said provision begins with exceptional clause. Thus, in the circumstances expected under the Code, the evidence can be recorded in the absence of the accused. In the presence case, since the petitioner had absconded during the course of trial, obviously the learned trial Court had no other option but to record the evidence in his absence. The record also reveals the fact that once the petitioner was arrested and brought back to face the trial, he did not move any application under Section 311 Cr.P.C., for recalling the witnesses whose testimonies were recorded behind his back. Therefore, the learned counsel is not justified in claiming that the mandatory provisions of Section 273 Cr.P.C., have been violated. 10. The case of Banchhanidhi Singh @ Nani Singh (supra) does not come to the rescue of the petitioner. For, in the case of Banchhanidhi Singh @ Nani Singh (supra), the accused's attendance had been dispensed with the during the examination of the witnesses. However, the testimonies of the witnesses were recorded during the absence of the accused. But, in the present case, the petitioner's presence was not dispensed with by the learned trial Court. In fact, he was duty bound to attend the trial on every day. However, he failed to do so. Therefore, he cannot be permitted to take the benefit of his own wrong. Thus, on factual matrix, the case of Banchhanidhi Singh @ Nani Singh (surpa) is distinguishable from the present case. 11. The learned counsel has also relied upon the case of Bal Kishan (supra). However, the said case is also distinguishable on factual matrix. For, he case of Bal Kishan (supra) was a complaint case where the statement of the witness was recorded at the pre-charge stage in absence of the accused. However, the present case is not a complaint case. Moreover, since the petitioner himself had run away from the law, he should neither expect the trial to come to a grinding halt, nor should expect that the witnesses would be recalled by the learned trial Court without his filing a proper application under Section 311 Cr.P.C. Thus, the stand taken by the petitioner that his right to cross-examine the witnesses has been violated, such a stand is unacceptable. 12. For the reasons stated above, this Court does not find any illegality or perversity in the impugned judgments. 12. For the reasons stated above, this Court does not find any illegality or perversity in the impugned judgments. Hence, this petition is devoid of any merit; it is, hereby, dismissed.