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2015 DIGILAW 349 (MP)

State of M. P. v. Bahid Khan

2015-03-26

M.K.MUDGAL, SHANTANU KEMKAR

body2015
JUDGMENT Mudgal, J. -- 1. The appellant/State has filed this criminal appeal under section 378 (iii) read with section 378 (I) of the Code of Criminal Procedure (hereinafter referred to as the CrPC), being aggrieved by the impugned judgment dated 19.3.1994 passed by the Court of Sessions Judge, Raisen in S.T. No.199/92 acquitting the respondent/accused for the offences punishable under section 302 of IPC and section 3(2) (v) of the SC/ST (Prevention of Atrocities) Act. 2. The facts in brief of the case are that when the deceased was sleeping on a cot in his Courtyard, the respondent -accused entered his house at 3 a.m. on 31.5.1992 carrying an axe and assaulted him with the axe on his neck, owing to which, the deceased received a severe and fatal injury. On the same day at 12:10 p.m. an FIR bearing Crime No.144/92 under section 307 of the IPC and section 3(2) (v) of the SC/ST (Prevention of Atrocities) Act, Ex.P-10 was lodged by the injured at the Police Station, Obeydullaganj, District Raisen. During treatment he died on 9.6.1992. The post-mortem was conducted by the Dr. Ashok Sharma and the statement of the witnesses were recorded. After investigation, the charge sheet was filed before the trial Court. 3. The respondent - accused was charged with the aforesaid offences and he denied the charges. His examination was conducted under section 311 of the CrPC wherein he denied all the allegations made against him which came on record in the statements of the witnesses. 4. Learned trial Court having considered the evidence acquitted the respondent- accused as stated earlier. 5. Heard the arguments of both the parties. 6. In this appeal the question that arises for consideration is that whether the trial has been properly carried out by the trial Court or not. 7. Learned Public Prosecutor appearing for the appellant –State submits that the statements of the 8 witnesses were got recorded by the prosecution before the trial Court. As per trial Court's record, charges were framed against the respondent - accused on 16.3.1993 and it was concluded on 19.3.1994 but the statements of the material witnesses were not recorded in this case. The doctor Ashok Sharma who conducted the post-mortem was not examined in this case. As per trial Court's record, charges were framed against the respondent - accused on 16.3.1993 and it was concluded on 19.3.1994 but the statements of the material witnesses were not recorded in this case. The doctor Ashok Sharma who conducted the post-mortem was not examined in this case. Similarly, the doctor S. S. Rajput who first examined the deceased and prepared MLC and found the deceased to in a fit state of mind to give statement was also not examined in this case. Apart from this, the witness R.S. Chouhan, Naib Tahsildar who recorded the dying declaration of the deceased on 31.5.1992 was also not examined in this case. On the aforesaid ground, learned Public Prosecutor has prayed for remanding the case with a direction that the material witnesses be examined by the trial Court and thereafter, judgment be passed. 8. Learned counsel for the respondent- accused opposing the submissions made on behalf of the appellant - State and supporting the findings recorded by the learned trial Court has submitted that the incident is of 1992, owing to which, there is no need to remand the case after more than 23 years. 9. On perusal of the record it transpires that the material witnesses as the doctor who conducted the post-mortem of the deceased, the other doctor who first examined the injured Patiram on the day of happening of the alleged incident and found him in a fit state of mind to depose his statement and the Naib Tahsildar R.S. Chouhan who recorded the dying declaration of the deceased have not been examined in this case. On the basis of the aforesaid facts it is concluded that the trial Court has conducted the case in a very casual manner. It was a case of murder and the respondent - accused was charged under section 302 of the IPC. Inspite of the fact that the trial Court has not attempted to summon the aforesaid witnesses. On perusal of the order sheets of the trial Court it is evident that no coercive process was also used against the aforesaid witnesses for securing their presence before the trial Court for getting their statements recorded. Not only this, no summons or warrant were got served to the said witnesses for calling them to depose their statements. On perusal of the order sheets of the trial Court it is evident that no coercive process was also used against the aforesaid witnesses for securing their presence before the trial Court for getting their statements recorded. Not only this, no summons or warrant were got served to the said witnesses for calling them to depose their statements. On the aforesaid grounds it is inferred that the impugned judgment passed by the trial Court deserves to be set aside. Merit evaluation of the witnesses is not being considered at this stage in this case as the case is being remitted to the trial Court for recording the statements of the material witnesses and so if the merit of the evidence is considered in this appeal it would definitely affect the trial Court's findings. Therefore, allowing the appeal and setting aside the impugned judgment, the case is remitted to the trial Court with a direction that the statements of the material witnesses be recorded and thereafter, the trial be concluded as per the provision of law. It is a very old case, hence it is expected of the trial Court that after receiving the record, the trial would be concluded as far as possible within a period of six months. 10. The respondent – accused is directed to remain present before the trial Court on 13.4.2015. The office is directed to ensure sending of the record along with the copy of the judgment to the trial Court before the date of hearing fixed by this Court. 11. The appeal stands allowed and disposed of with the aforesaid direction. Brahmdatt Singh, Public Prosecutor for appellant/State; Imtiyaj Hussain for respondent/accused.