Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 515 (MP)

Hirdesh Sahu v. State of M. P.

2021-06-24

SUBODH ABHYANKAR

body2021
ORDER 1. This is the applicant's fourth bail application under section 439 of Criminal Procedure Code, 1973. He is implicated in connection with Crime No.80/2019 registered at Police Station Heera Nagar, Indore District Indore (MP) for offence punishable under sections 364A and 120B read with section 34 of the Indian Penal Code, 1860. His first bail application Miscellaneous Criminal Case No.26253/2019 was dismissed on merits by this Court on 24.7.2019 whereas second bail application Miscellaneous Criminal Case No.17429/2020 was dismissed as withdrawn on 11.6.2020 with liberty to file fresh application along with Court statement the witnesses examined before the trial Court and third bail application, Miscellaneous Criminal Case No.20960/2020 was dismissed as withdrawn on 13.7.2020. The applicant is in jail since 14.2.2019. 2. The applicant is arrested in connection with the aforesaid offence whereby a boy aged seven years was kidnapped for ransom. 3. Learned senior counsel for the applicant Shri P.K. Saxena has vehemently argued before this Court that the victim himself has not supported the case of the prosecution and has clearly deposed in his cross-examination that he has identified the accused persons as he was directed by the Police uncle and earlier also, he had deposed as per the dictates of the Police uncle, as he is afraid of Police. 4. Counsel has further submitted that even the independent witness PW-6 Jai Prakash has not supported the case of the prosecution. 5. Counsel for the respondent State, on the other hand has opposed the prayer. 6. Heard. 7. On due consideration of the submissions and on perusal of the case diary as also the deposition of the victim, this Court finds that so far as the examination-in-chief of PW-2 victim is concerned, he has clearly identified the accused persons, as the persons who had abducted him. However, after his examination-in-chief on 4.10.2019, his cross-examination was conducted after more than two months i.e. on 18.12.2019 and this time, he has not supported the case of the prosecution, denying his earlier statement on the ground that he is afraid of Police personnel and they had asked him to depose in a particular manner supporting the case of the prosecution. 8. It is also found that the other eye witness PW/6 Jaiprakash who was examined on 4.3.2021 and other independent witnesses have also not supported the case of the prosecution. 9. 8. It is also found that the other eye witness PW/6 Jaiprakash who was examined on 4.3.2021 and other independent witnesses have also not supported the case of the prosecution. 9. After careful examination of the material available on record, this Court is not inclined to accept the contention of the learned senior counsel and is not inclined to allow the bail application. 10. So far as the deposition of the victim in his cross-examination is concerned, apparently he has not supported the case of the prosecution however, he has affirmed his kidnapping by the accused persons by identifying them in his examination-in-chief, thus, in the considered opinion of this Court, it is for the trial Court to examine the aforesaid aspect of the matter while passing the final judgment; as this Court cannot venture into appreciating the evidence at this stage. 11. This Court had also called for the proceedings of the trial Court to see as to why after the victim child witness's examination-in-chief on 4.10.2019, he was cross examined only on 18.12.2019 i.e. after more than two months, and it was found that on 4.10.2019 the examination could not be completed due to end of Court hours and the case was fixed on 13.11.2019 i.e. after more than 39 days and there after on 13.11.2019 and 28.11.2019, the child witness remained absent and finally on 18.12.2019 he was cross-examined and took a somersault from his earlier story by denying everything. It is apparent that in the meantime, he was won over by the accused persons. At this juncture it would be necessary to refer to sub-section (1) of s.309 of Cr.P.C. which reads as under :- “Section “S. 309 (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.” (Emphasis supplied) 12. This Court is well aware of the time constrains of the trial Courts for myriad of reasons but it appears that the aforesaid provision of law has been given a complete go-by by the learned judge of the trial Court while fixing the date for cross-examination. This Court is well aware of the time constrains of the trial Courts for myriad of reasons but it appears that the aforesaid provision of law has been given a complete go-by by the learned judge of the trial Court while fixing the date for cross-examination. The relevant excerpts of the order dated 4.10.2019 read as under:- ^^--------------------- 4-10-2019 Ádj.k vfHk;kstu lk{; gsrq fu;r gSA vfHk;kstu lk{kh jksfgr tSu ,oa v{kr tSu mifLFkrA vfHk;kstu lk{kh jksfgr tSu vŒlkŒ&1 dks 'ks"k Áfrijh{k.k mijkar mUeqDr fd;k x;k rFkk vfHk;kstu cky lk{kh v{kr tSu ls Á'u iwNs x, mlds }kjk fn, x, mÙkj dks n`f"Vxr j[krs gq, lk{kh Á'uksa dks le>dj mudk mÙkj nsus esa l{ke Árhr gksus ds dkj.k mldk eq[; ijh{k.k ÁkjaHk fd;k x;k rFkk U;k;ky;hu le; lekIr gksus ds dkj.k lk{kh dk Áfrijh{k.k lhfer fd;k tkdj vkxkeh is'kh rkjh[k dh lwpuk nsdj mUeqDr fd;k x;kA Ádj.k vfHk;kstu lk{kh v{kr tSu ds Áfrijh{k.k gsrq fnukad 13-11-2019 dks is'k gksA** 13. This Court is at pains to see the casual manner in which the next date is fixed in this case. In the considered opinion of this Court the learned judge ought to have seen the sensitivity of the matter and should not have given such long date for no apparent reasons for the purposes of cross-examination which has led to the material witness turning hostile, seriously jeopardizing and undermining the efforts made by the police officers to bring home the charges against the accused persons, and to say the least, of the cost involve in the rescue operation which is always borne by the State. 14. In such circumstances, lest it is again forgotten, it is hereby directed to all the judges of the trial Court, to ensure the compliance of section 309 of Cr.P.C. and specially in sensitive cases like murder, abduction and rape, it should be observed religiously, without fail and cases should not be adjourned on the drop of a hat. 15. Let a copy of this order be forwarded to the Registrar General for its proper compliance. 16. Resultantly, Miscellaneous Criminal Case No.29219/2021 being devoid of merits is hereby dismissed with the aforesaid observations.