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2023 DIGILAW 45 (ALL)

Sanjeev Kumar v. State of U. P.

2023-01-05

UMESH CHANDRA SHARMA

body2023
JUDGMENT : [Umesh Chandra Sharma, J.] 1. Heard Shri Atharva Dixit, learned counsel for the applicants and Shri Pankaj Kumar Tripathi, learned A.GA. for the State. Perused the material available on record. 2. By this application, the applicants have challenged the order dated 21.11.2022 passed in Session Trial No. 392 of 2009 (Stae Vs. Sanjeef Kumar and others) arising out of Case Crime No. 142 of 2009 under Section 498A, 304 B I.P.C. and Section 3/4 of the D.P. Act, with an alternative charge under Section 302 IPC Police Station-Lanka, District-Varanasi and grant an opportunity to the applicants to lead their defence evidence. 3. In brief facts of the case are that the aforesaid trial is going on in the Court of Additional District Judge/ FTC Court No. 14th Finance Commission, Varanasi, on the allegations that the daughter of the first informant had solemnized her marriage with the applicant no. 1 on 18.4.2006. The applicants demanded dowry and administered poison to her due to which she was hospitalised and ultimately died on 27.3.2009. After submission of charge-sheet, the charges were framed and the trial commenced. It is contended that seeing the deteriorating condition of applicant no.3 Kusum Devi, she was kept under medical observation and had been hospitalized for treatment on 10.11.2022 and since then she is in hospital and due to this reason the applicants were unable to lead defence evidence. The matter was lastly listed on 15.11.2022 for the defence evidence but due to ill health of the applicant's counsel an adjournment application before the Court below was moved. 4. On 21.11.2022 an application was moved to provide an opportunity to lead the evidence of examining the defence witness. However, the said application was rejected in a mechanical and arbitrary manner by order dated 21.11.2022 which is under challenge before this Court on the ground that the order has been passed in a very perfunctory and malafide manner which is against the principles of natural justice and the right to fair trial. The trial is pending since 2009 and the prosecution has completed its evidence only in the year 2022. The prosecution has led its evidence in a period of over 13 years. The trial is pending since 2009 and the prosecution has completed its evidence only in the year 2022. The prosecution has led its evidence in a period of over 13 years. It is a case under Section 304 B I.P.C. where statutory presumption under Section 113B of the Indian Evidence Act exists against the accused persons which is rebuttable in nature and it can be rebutted only by leading defence evidence. In absence of any opportunity to lead the defence witnesses, the defence would be deprived of its right to rebut such presumption. The learned Court below under undue haste is not granting opportunity of defence and is adopting two different parameters with respect to the prosecution and the defence. It has already been upheld in various cases by the Apex court as well as different High Courts that any person can be summoned or recalled as a witness for examination at any stage of the proceedings where it is essential. All the applicants are on bail pending trial, therefore, impugned order be set-aside and an opportunity be granted to the applicants to lead their defence evidence. 5. The copy of the impugned order and relevant papers have been annexed with the petition. 6. By way of supplementary affidavit dated 28.11.2022, the applicants have produced the certified copy of the chick FIR and the impugned order. By way of supplementary affidavit no. 1/2022 copy of the order-sheet and the questionnaire have been filed. 7. Heard learned counsel for the applicants and learned A.G.A. Perused the record. 8. From perusal of the order-sheet it transpires that the prosecution could not conclude its evidence for a decade but after recording statement under Section 313 Cr.PC., the case was fixed for production of defence evidence. The learned Trial Court started taking defence evidence. On 15.10.2022 and 19.10.2022, the learned Trial Court awarded Rs. 500/-cost on the adjournment of the accused-applicants and granted opportunity to produce the defence evidence on 5.11.2022 and 8.11.2022 and lastly on 15.11.2022, he closed the defence evidence and when recall application was moved, the same was rejected on 21.11.2022. 9. The learned counsel for the applicants contends that under Section 113 B of the Evidence, the burden lies on the accused-applicants to discharge their duty that they have not committed the dowry death, therefore, the production of defence evidence is must and essential for ends of justice. 9. The learned counsel for the applicants contends that under Section 113 B of the Evidence, the burden lies on the accused-applicants to discharge their duty that they have not committed the dowry death, therefore, the production of defence evidence is must and essential for ends of justice. Section 233 Cr.PC. is as under: 233. Entering upon defence. (1) Where the accused is not acquitted under section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. (2) If the accused puts in any written statement, the Judge shall file it with the record. In Several judicial precedence, it has been held that proper opportunity for adducing defence evidence must be provided by the Court. The word 'shall' has been used everywhere in section 233 Cr.P.C. In Sivamani alias Sivan V. State of Kerala, 1993 CrLJ 23 (DB), it has been held that "there is no reason to bypass the provisions of Ss. 232 and 233 Cr.P.C. and conviction recorded in violation of this procedure renders the conviction illegal." In Parameswara Kurup Janardhanan Pillai V. State of Kerala, 1982 CrLJ 899 (Ker-DB), it has been held that "an accused who was not acquitted under S. 232 and not called upon to enter upon his defence under this section, the trial is in violation of the latter part of the mandatory provision and is liable to be set aside." In N. Pishak Singh V. State of Manipur, 2006 CrLJ (NOC) 197, it has been held that "where the accused had defence to make and wanted to examine defence witness, failure on the part of the Court to call upon the accused to enter upon the defence caused prejudice to him in his defence, his conviction on the charge of murder was set aside." 10. As per the (Sub-sec. (3) of the aforesaid Section, the accused may apply for issue of process to compel attendance of witnesses or production of documents or things and the Judge, unless he considers the application to be vexatious or made for the purpose of delay or defeating the ends of justice, shall issue such process. The Judge should record his reasons for refusal. 11. The Judge should record his reasons for refusal. 11. In this case, the trial Judge has not concluded that the defence evidence is not necessary or without adducing the defence witnesses, the accused persons would be in capacity to rebut the presumption under Section 113 (b) of the Evidence Act. Therefore, only on this ground that the defence has taken few dates for adducing the evidence, it would not be appropriate to close the defence evidence. At least proper opportunity must be provided to the accused persons to adduce the evidence in their defence. 12. In Manoj Kumar Swami V. State of U.P., 2006 CrLJ 1781 (1782), it has been held that "At the stage of defence the accused has a right to summon any evidence which may be relevant for proper appreciation of the prosecution evidence and to substantiate his defence". 13. From the perusal of impugned order it appears that the learned trial Court has passed the order in hurried manner. The defence should have been provided at least sufficient opportunity without counting the dates. It is further revealed that the Trial Judge had also taken note that the prosecution was not taking the case seriously otherwise it would have not taken twelve years at the stage of prosecution evidence. 14. On 11.10.2022 the statement of the accused persons have been recorded under Section 313 Cr.PC and from 15.10.2022 to 15.11.2022 the opportunity to produce the defence evidence was provided and just within a month the defence evidence has been closed. If we compare the time given to the prosecution and the defence, the picture is very much clear that just after recording the statement under Section 313 Cr.P.C., the learned trial Court started directing the defence to make haste. From the perusal of grounds taken in the recall application and in the present application, it transpires that certainly there were some compelling circumstances due to which the accused persons could not produce the defence evidence. 15. In the judicial precedents referred to above, where the trial Court passed the orders in a haste manner and did not provide proper opportunity to adduce the evidence in defence and convicted the accused persons, such orders of conviction have been set aside. 16. 15. In the judicial precedents referred to above, where the trial Court passed the orders in a haste manner and did not provide proper opportunity to adduce the evidence in defence and convicted the accused persons, such orders of conviction have been set aside. 16. Considering the overall circumstances of the case and time consumed by the prosecution this Court concludes that the trial Court ought to have adopted more liberal view towards defence and they should have been provided sufficient time for production of defence evidence. 17. On the basis of above discussion this Court is of the view that to prevent the abuse of process and to secure the ends to justice it is imperative for this Court to intervene with the impugned order and to allow the application. ORDER : The application under Section 482 Cr.P.C. is allowed and the order dated 21.11.2022 passed in S.T. No. 392 of 2009 (State Vs. Sanjeet Kumar and Others) arising out of Case Crime No. 142 of 2009 under Section 498A, 304 B I.P.C. and Section ¾ D.P. Act, with an alternative charge under Section 302 I.P.C. Police Station-Lanka, District-Varanasi, is hereby set aside. The learned Trial Court is directed to provide sufficient opportunity to adduce the defence evidence to the accused-applicants for which this Court thinks proper to provide at least 5 dates for production of prosecution evidence. It is further directed that the applicants shall not move any unnecessary adjournments. Further, if any application for summoning of the record or witnesses is moved, the same shall be considered in view of the above observations. A copy of this order be sent to the trial Court for compliance.