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2016 DIGILAW 413 (RAJ)

Mukesh v. State of Rajasthan

2016-03-15

SANDEEP MEHTA

body2016
JUDGMENT : Hon'ble MEHTA, J.—The present bail application has been filed under Section 439 Cr.P.C. on behalf of the petitioner, who is in custody in connection with F.I.R. No. 424/2014, Police Station Dungarpur Kotwali, District Dungarpur, for the offence under Section 302 IPC. 2. Learned counsel for the petitioner contended that there is no evidence whatsoever on the record of the case to show that the petitioner set fire to the deceased Sushri Reena aged 18 years, after pouring kerosene on her. He submitted that the Investigating Officer examined witnesses Anita Katara and Nisha in order to prove the case. He drew the court's attention to the statement of Nisha recorded by the trial Court and urged that in her statement, Nisha has clearly exonerated the petitioner. The Public Prosecutor conducting the trial did not declare her to be hostile. Thus, he urged that the petitioner deserves to be released on bail. 3. Per contra, the learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the petitioner. He urged that the dying declaration of Reena was recorded by the learned Magistrate on 16.10.2014 in which, she clearly stated that the petitioner set her to fire after pouring kerosene on her body. He submitted that the Prosecutor conducting the trial has acted negligently in this case and the trial court was also negligent while recording the statement of the witness Nisha. Mst. Nisha, when examined under Section 161 Cr.P.C. during investigation clearly stated that she herself saw Mukesh Rot setting fire to the books and footwear of Reena. Thereafter, both of them entered into a room and looked it from inside. A little later, she saw smoke coming out from the room and heard Reena shouting that Mukesh Rot had set fire to her. When being examined in the court, Nisha resiled from the said statement and claimed that Reena caught fire while cooking food on a stove and that Mukesh Rot was not responsible for the incident. She entirely exonerated the accused Mukesh Rot in her sworn testimony. When being examined in the court, Nisha resiled from the said statement and claimed that Reena caught fire while cooking food on a stove and that Mukesh Rot was not responsible for the incident. She entirely exonerated the accused Mukesh Rot in her sworn testimony. Learned Public Prosecutor urged that in view of the contradiction inter-se between the statement of Nisha as recorded during investigation and her sworn testimony, the Public Prosecutor conducting the trial of the case should have confronted her with her earlier statement after declaring her to be hostile and the trial Court should also have remained vigilant in this regard. He however submitted that as there is other clinching evidence available on record showing that the petitioner Mukesh Rot poured kerosene on Reena and set her to fire, he is not entitled to be released on bail. 4. I have heard that arguments advanced by the learned counsel for the parties and have gone through the material available on record. 5. The witness Nisha on whose testimony, the learned counsel for the petitioner vehemently relied upon, during the course of investigation, clearly gave an inculpatory statement against the petitioner. However, when she was examined during trial as PW.4, she resiled from the said version. The Public Prosecutor conducting the trial did not care to confront her with her statement recorded under Section 164 Cr.P.C. The trial Court also remained oblivious to this glaring defect in the manner of recording of the evidence. The Hon'ble Supreme Court has time and again observed that the courts are not supposed to act as ignorant bystanders while conducting trial. The case of a party should not be allowed to be adversely affected because of negligent conduct of the Public Prosecutor. In the case at hand, the learned trial Judge should have remained vigilant while conducting the trial. In the case of Himanshu Singh Sabharwal vs. State of M.P. and Ors. The case of a party should not be allowed to be adversely affected because of negligent conduct of the Public Prosecutor. In the case at hand, the learned trial Judge should have remained vigilant while conducting the trial. In the case of Himanshu Singh Sabharwal vs. State of M.P. and Ors. reported in (2008) 3 SCC 602 , the Hon'ble Supreme Court observed as below: "....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 relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. S. 311 of the Code and S. 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all nece-ssary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness." 6. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness." 6. Thus, the trial Court by ignoring this material and deliberate omission of the learned Public Prosecutor conducting the trial, acted with gross negligence in the discharge of its pious obligations. 7. Even if the statement of Nisha recorded at the trial is ignored, then too, there is ample evidence available on record in terms of the dying declaration of the deceased Reena recorded by the learned Magistrate under Section 164 Cr.P.C. which establishes beyond all manner of doubt that the petitioner set her to fire. Be that as it may as, other than the statement of Nisha, there is significant material available on record so as to connect the petitioner with the offence and looking to the gravity of allegations, this Court is not inclined to grant bail to the petitioner. 8. The bail application thus being devoid of any merit is hereby dismissed.