Crl.Appeal 67/2017 1 VI ADJ, Sompeta
IN THE COURT OF THE VI ADDITIONAL DISTRICT AND
SESSIONS JUDGE, SOMPETA.
Present: Sri D.Ramulu, VI Additional District & Sessions Judge, Sompeta.
Tuesday, this the 20th day of March, 2018.
Criminal Appeal No.67/2017
From What Court the Appeal is preferred: Judl. Magistrate of 1st Class, Ichapuram.
Number of the case in that: : C.C.No. 146/2013
Number of the Appeal : Criminal Appeal No. 67/2017 Name and description of the Appellants:
1. Bhimmo Behera, S/o.Bhagatho Behera, aged 49 years, keviti by caste, Brahmin street, Boddabada village in Ichapuram Mandalam in Srikakulam District.
2. Godavari Behara, S/o.Bhagatho Behera, aged 54 years, Keviti by caste, Brahmin street, Boddabada village in Ichapuram Mandalam in Srikakulam District. (complaints in C.C.146/2013 on the file of JMFC Ichapuram)
And:
1. Mukunda Behera, S/o.Duryodhana @ duryodhana Behera, aged 58 years, Boddabada village in Ichapuram Mandalam in Srikakulam District.
2. Dammo Behera @ Damodhara Behara, S/o.Sanyo Behera, aged 52 years, Boddabda village in Ichapuram Mandalam in Srikakulam District.
(Accused in C.C.146/2013 on the file of JMFC, Ichapuram)
3. State represented by Public Prosecutor, Srikakulam ..Respodents
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The sentence and order under which it was imposed in the lower Court.:
In the result, A1 and A2 are not found guilty for the offence u/secs.326, 324, 323 r/w 34 IPC and they are acquitted under sec.248(1) Cr.P.C., Bonds and Bail Bonds of the accsued shall stands cancelled after lapse of six months. M.O.1 shall be destroyed after lapse of appeal time.
Whether confirmed/modified or Reversed,set aside.
if modified the modification:
Date of presentation: 27-7-2017
Date of filing: 05-12-2017
Notice issued by Court to appear:18-12-2017
Bail bonds if appellants have been let out on bail:
Appellant ordered to appear: Date of hearing: 28-02-2018 Date of judgment:: 19-03-2018
This case coming on 28-02-2018 for final hearing
before me in the presence of Sri S.Venkatarao and Sri
N.Viswanadh, Learned Advocates for Appellants and of Sri V.C.Patnaik, Sri Satyanarayana Padhy learned advocate for Respondents 1 and 2 and Additional Public Prosecutor for Respondent 3 and upon hearing both sides and having stood over till this day for consideration, this court delivered the following:
JUDGMENT
1.The present appeal is preferred against the judgment in
C.C.No. 146/2013 dt. 6-4-2017 on the file of Judicial Magistrate of 1st Class, Ichapuram.
2.For the sake of convenience the parties are referred hereinafter as arraigned in the trial court as complainant and accused.
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3. The case of the prosecution as per charge sheet is:
PW.1 is defacto complainant and injured and PW.2 (injured) and 3 are his brothers. On 16-9-2013 at about 10-00 a.m. Dammo
Behara (A2) came in a drunken state and abused in the name of
PW.3 (Kasinadh Behara) by standing in front of PW.1’s house then
PW.1 came out from his house and questioned A2 about his abusigng and pushed against each other with hands. Meanwhile
Mukunda Behara (A1) came armed with a stick and beat on his left elbow joint and caused bump injury. By the time PW.2 came in rescue to him. Then A1 beat left side head of PW.2 with a stick and caused bleeding injury. On noticing the quarrel, PW.3 came by running and separated them. A2 beat PW.2 with hands.
PW.1 gave report to police and basing on the report K.kesavarao (PW.7) registered the crime, examined the witnesses, seized the stick, observed scene of offence, got photographs, prepared rough sketch and arrested the accsued with the assistance of PC 1457 (D.Sankara rao) as the witnesses belongs to oriya. The Sub-
Inspector of police verified the investigation and filed the charg sheet after obtaining wound certificates of PW.1 and PW.2.
Hence the Charge.
4. This case was taken on file for the offence punishable under Sections 326, 324, 323 r/w 34 of IPC against the accused
5.On appearance of accused, case copies were furnished to them under Sec. 207 of Cr.P.C.
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6. The accused were examined under Sec. 239 of Cr.P.C charge under Sections 326, 324, 323 r/w 34 of IPC read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. During the course of trail the prosecution examined PWs.1 to 9 and marked Exs. P.1 to P.7 and
M.O.1
7. After closure of prosecution evidence the accused 1 and 2 were examined under Sec. 313 of Cr.P.C by the trial court and with regard to the incriminating circumstances appearing against them in the evidence of prosecution witnesses read over and explained to them in Telugu for which they denied the same and reported no defense evidence.
8.Having aggrieved by the judgment and acquittal of the trial court finding theA1 and A2 are not found guilty for the offence u/secs.326, 324, 323 r/w 34 IPC and they are acquitted under sec.248(1) Cr.P.C., Bonds and Bail Bonds of the accsued shall stands cancelled after lapse of six months. M.O.1 shall be destroyed after lapse of appeal time.
9. The appeal is preferred by the appellants/Complainants with the following grounds that:
a) The judgment of trial court is below is contrary to law, weight of evidence and probabilities of the case.
b) The lower court ought to have convict the accused for the offence under section 326,324 and 323 r/w 34 IPC.
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c) The Lower Court failed to arrive to correct conclusion on the evidence adduced on behalf of the prosecution.
d) The lower court is failed to see that there are corroboration on evidence amont the PW’s as such their evidence can be taken into the consideration.
e) The acquittal of the Respondents No.1 and 2 here in for the offence under sections 326, 324, and 323 r/w 34 IPC is erroneous and bad in law.
f) The lower court is erroneously acquitted the respondents 1 and 2/accused without evaluate the evidence of PW.1 to PW.5
g) The lower court failed to observe that the eye witnesses and other prosecution witnesses are supported the version of the
PW.1 and PW.2.
h) The Lower Court has not appreciated the evidence of
P.W’s properly but misread their evidence only as a base for acquitting of the case.
i) The trial court has taken a view based on conjectures and hypothesis and not on legal evidence.
For these and other grounds will be urged at the time of hearing of the appeal and the Appellants therefore prays that the court may be pleased to set aside the judgment in CC 146/2013
dt. 6-4-2017 on the file of Judl. Magistrate of 1st Class,
Ichapuram.
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The Honourable District Court, Srikakulam registered and made over to this court for disposal according to law.
10.Heard arguments for learned appellants counsel,
Respondents counsel and Addl. Public Prosecutor.
11. Before disposing the above appeal, some points for consideration may be framed.
The poignant point for consideration is the Hon'ble
Magistrate can grant the unwarranted adjournments for
procrastination of trial, as the P.W-1 examined in chief on 9-9- 2014, whereas the cross examination is held on 9-1-2015 and P.W- 2 examined in chief on 19-9-2014 where as Cross examined on 9- 1-2015 and P.W-3 examined in chief on 19-9-2014 where as cross examined on 9-1-2015. The P.w-4 examined in chief on 20-2- 2015, and cross examined on 6-7-2015. P.W-5 examined in chief on 20-2-2015 where as cross examined on 6-7-2015. P.W-6 examined in chief on 7-9-2015 and cross examined on 21-9-2015 (Civil Assistant Surgeon ( Public Servant). P.W-7 (Head Constable and Public Servant) examined in chief on 14-9-2015 and cross examined on 2-11-2015.
12.At this Juncture Sec. 309 of Cr.P.C is to be looked into:
In every inquiry or trial the proceedings 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 recorded.
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13.Provided that when the inquiry or trial relates to an offence under Section 376, Section 376-A, Section 376B, Section 376C or Section 376D of the Indian Penal Code (45 of 1860), the inquiry or trial shall, as far as possible be completed within a period of two months from the date of filing of the charge sheet.
14. If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this Section for a term exceeding fifteen days at a time:
Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recordsed in writing.
(Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him)
Provided also that:
a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;
b) the fact that the pleader of a party is engaged in another Court shall not be a ground for adjournment.
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c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispending with the examination in chief or cross-examination of the witness, as the case may be.
Explanation I:
If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.
Explanation II:
The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.
15.In support of the above provision of Law, this court may be permitted to cite certain Judgments of High Courts and Highest
Court:
16.“In a decision reported in Chandra Sain Jain and
others V. The State - 1982 Crl. L.J. NOC 86 (ALL) a Single
Judge has held as under while interpreting Section 309 of
Cr.P.C”.
Merely because the prosecution is being done by C.B.I.
or by any other prosecuting agency, it is not right to grant adjournment on their mere asking and the Court has to justify every adjournment if allowed, for, the right to speedy trial is part of fundamental rights envisaged under Art. 21 of the
Constitution, 1979 Cri LJ 1036 (SC), Foll. (Emphasis added)
17. In the decision reported in The State V. Bilal Rai and
Crl.Appeal 67/2017 9 VI ADJ, Sompeta
others - 1985 Crl. L.J. NOC 38 (Delhi) it has been held as
under:
“When witnesses of a party are present, the court should make every possible endeavour to record their evidence and they should not be called back again. The work fixation of the Court should be so arranged as not to direct the presence of witnesses whose evidence cannot be recorded. Similarly, cross- examination of the witnesses should be completed immediately after the examination in chief and if need be within a short time thereafter.
No long adjournment should be allowed. Once the examination of witnesses has begun the same should be continued from day to day. (Emphasis added)”
18. In the decision reported in Lt. Col. S.J. Chaudhary V.
State (Delhi Administration) - (1984) 1 SCC 722, this Court
in paragraphs 2 and 3 has held as under:
“We think it is an entirely wholesome practice for the trial to go on from day-to-day. It is most expedient that the trial before the Court of Session should proceed and be dealt with continuously from its inception to its finish. Not only will it result in expedition, it will also result in the elimination of manoeuvre and mischief. It will be in the interest of both the prosecution and the defence that the trial proceeds from day-to- day. It is necessary to realise that Sessions cases must not be tried piecemeal. Before commencing a trial, a Sessions Judge must satisfy himself that all necessary evidence is available. If it is not, he may postpone the case, but only on the strongest possible
Crl.Appeal 67/2017 10 VI ADJ, Sompeta ground and for the shortest possible period. Once the trial commences, he should, except for a very pressing reason which makes an adjournment inevitable, proceed de die in diem until the trial is concluded”.
We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his Advocate is finding it difficult to attend the court from day-to-day. It is the duty of every Advocate, who accepts the brief in a criminal case to attend the trial from day-to- day. We cannot over-stress the duty of the Advocate to attend to the trial from day-to-day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend. The criminal miscellaneous petition is, therefore, dismissed. (Emphasis added)
19. In a recent decision of the Delhi High Court reported
in State V. Ravi Kant Sharma and Ors. - 120 (2005) DLT
213, a Single Judge of the High Court has held as under in
paragraph 3:
The Court has discretion to defer the cross- examination.
But as a matter of rule, the Court cannot orders in express terms that the examination-in-chief of the witnesses is recorded in a particular month and his cross-examination would follow in particular subsequent month. Even otherwise it is the demand of the criminal jurisprudence that criminal trial must proceed day- to-day. The fixing of dates only for examination-in- chief of the lengthy witnesses and fixing another date i.e. 3 months later for the purposes of cross-examination is certainly against the
Crl.Appeal 67/2017 11 VI ADJ, Sompeta criminal administration of justice. Examination-in- chief if commenced on a particular date, the Trial Judge has to ensure that his cross-examination must conclude either on the same date or the next day if cross-examination is lengthy or can continue on the consecutive dates. But postponing the cross- examination to a longer period of 3 month is certainly bound to create legal complications as witnesses whose examination-in- chief recorded earlier may insist on refreshing their memory and therefore such an occasion should not be allowed to arise particularly when it is the demand of the criminal law that trial once commence must take place on day-to-day basis. For these reasons, the order passed by the learned Additional Sessions Judge to that extent will not hold good in the eyes of law and therefore the same is liable to be set aside. Set aside as such. Learned Additional
Sessions Judge should refix the schedule of dates of examination
of prosecution witnesses and shall ensure that examination-in- chief once commences cross- examination is completed without any interruption. (Emphasis added) If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub- section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss
Crl.Appeal 67/2017 12 VI ADJ, Sompeta suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case).
20. The Hon'nle Supreme Court of India (2015) 42 SCD 316 decided on 21 st day of January, 2015
If one is asked a question, what afflicts the legally requisite criminal trial in its conceptual eventuality in this country the two reasons that may earn the status of phenomenal signification are, first, procrastination of trial due to non-availability of witnesses when the trial is in progress and second, unwarranted adjournments sought by the counsel conducting the trial and the unfathomable reasons for acceptation of such prayers for adjournments by the trial courts, despite a statutory command underS ection 309of the Code of Criminal Procedure, 1973 CrPC and series of pronouncements by this Court. What was a malady at one time, with the efflux of time, has metamorphosed into malignancy. What was a mere disturbance once has become a disorder, a diseased one, at present.
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2. The instant case frescoes and depicts a scenario that exemplifies how due to passivity of the learned trial Judge, a witness, despite having stood embedded absolutely firmly in his examination-in-chief, has audaciously and, in a way, obnoxiously, thrown all the values to the wind, and paved the path of tergiversation. It would not be a hyperbole to say that it is a maladroit and ingeniously designed attempt to strangulate and crucify the fundamental purpose of trial, that is, to arrive at the truth on the basis of evidence on record. The redeeming feature is, despite the malevolent and injurious assault, the cause of justice has survived, for there is, in the ultimate eventuate, a conviction which is under assail in this appeal, by special leave.
3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question, is it justified for any conscientious trial Judge to ignore the statutory command, not recognize "the felt necessities of time" and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracizing the concept that a civilized and orderly society thrives on rule of law which includes "fair trial" for the accused as well as the prosecution.
4. In the aforesaid context, we may recapitulate a passage from Gurnaib Singh V. State of Punjab....... We are compelled to proceed to reiterate the law and express our anguish
Crl.Appeal 67/2017 14 VI ADJ, Sompeta pertaining to the manner in which the trial was conducted as it depicts a very disturbing scenario. As is demonstrable from the record, the trial was conducted in an extremely haphazard and piecemeal manner. Adjournments were granted on a mere asking.
The cross-examination of the witnesses was deferred without recording any special reason and dates were given after a long gap. The mandate of the law and the views expressed by this
Court from time to time appears to have been totally kept at bay.
The learned trial Judge, as is perceptible, seems to have ostracised from his memory that a criminal trial has its own gravity and sanctity. In this regard, we may refer with profit to the pronouncement in Talab Haji Hussain v. Madhukar
Purshottam Mondkar wherein it has been stated that an accused person by his conduct cannot put a fair trial into jeopardy, for it is the primary and paramount duty of the criminal courts to ensure that the risk to fair trial is removed and trials are allowed to proceed smoothly without any interruption or obstruction."
21.Be it noted, in the said case, the following passage
from Swaran Singh V. State of Punjab was reproduced.
"It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the [pic]other till a witness is won over or is
Crl.Appeal 67/2017 15 VI ADJ, Sompeta tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice."
22. In this regard, it is also fruitful to refer to the authority in
State of U.P. V. Shambu Nath Singh[4], wherein this Court deprecating the practice of a Sessions Court adjourning a case in spite of the presence of the witnesses willing to be examined fully, opined thus: We make it abundantly clear that if a witness is present in court he must be examined on that day. The court must know that most of the witnesses could attend the court only at heavy cost to them, after keeping aside their own avocation.
Certainly they incur suffering and loss of income. The meagre amount of bhatta (allowance) which a witness may be paid by the court is generally a poor solace for the financial loss incurred by him. It is a sad plight in the trial courts that witnesses who are called through summons or other processes stand at the doorstep from morning till evening only to be told at the end of the day that the case is adjourned to another day. This primitive practice must be reformed by the presiding officers of the trial courts and it can be reformed by everyone provided the presiding officer concerned has a commitment towards duty."
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23.Before parting with the case we are constrained to reiterate what we have said in the beginning. We have expressed our agony and anguish the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts. Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of. As has been noticed earlier, in the instant case the cross- examination has taken place after a year and 8 months allowing ample time to pressurize the witness and to gain over him by adopting all kinds of tactics. There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of rule of law and eventually turn
Crl.Appeal 67/2017 17 VI ADJ, Sompeta such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non- acceptable reasons. In fact, it is not all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in- chief is over, the cross- examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safe-guarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort.
Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High
Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross- examination of a witness at their pleasure or at the leisure of the defence counsel,
Crl.Appeal 67/2017 18 VI ADJ, Sompeta for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute.
Accordingly, the above point is answered.
24.Now the second point for consideration is
Whether the relative witness is an interested witness?
In simple words, relative witness is a witness who is related by consanguinity to the prosecution witnesses, more especially to the injured/ deceased in the case. The term interested postulates that the person concerned must have some direct interest in seeing that the accused person is some how or other connected either because he had some animus with the accused or for other reason.
25.Now related is not equallent to interested. A witness is interested only when he derives some benefit from the result of the litigation- State of Rajasthan V. Smt Katli AIR 1981 SC 1390.
26. In Masalti v. State of U.P. it has been ruled that normally close relatives of the deceased would not be considered to be interested witnesses who would also mention the names of the other persons as responsible for causing injuries to the deceased.
27. In Hari Obula Reddi and others v. The State of Andhra
Pradesh a three-Judge Bench has held that evidence of interested witnesses is not necessarily unreliable evidence. Even
Crl.Appeal 67/2017 19 VI ADJ, Sompeta partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. It cannot be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.
28. In Kartik Malhar v. State of Bihar it has been opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term ‘interested’ postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.In Pulicherla Nagaraju alias Nagaraja Reddy v.
State of Andhra Pradesh, while dealing with the liability of interested witnesses who are relatives, a two-Judge Bench observed that it is well settled that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the deceased, if it is otherwise found to be trustworthy and credible. The said evidence only requires scrutiny with more care and caution, so that neither the
Crl.Appeal 67/2017 20 VI ADJ, Sompeta guilty escapes nor the innocent is wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, then it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted.
29.No evidence can ever be perfect for man is not perfect and man lives in an imperfect world. Thus, the duty of the court is to see with the vision of prudence and acceptability of the deposition regard being had to the substratum of the prosecution story. In this context, we may reproduce a passage from the decision of this Court in State of Punjab v. Jagir Singh Baljit
Singh and Karam Singh, wherein H.R. Khanna, J., speaking for the Court, observed thus:- “A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to
judge the evidence by the yardstick of probabilities, its
intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.”
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30.In the course of arguments, learned counsel for the accused persons had challenged the truthfulness of the evidence of complainant Ramswaroop on the ground that he is an interested and relative witness because he has land disputes with the accused persons as per his own admission. In view of the settled legal position there Cr.A. No.491/2007 is a palpable distinction between an interested witness and the relative witness. An interested witness is one who is highly interested in the conviction of an accused because of his personal prejudices and enmity with him, whereas the relative witness is one who is related to the victim either by blood or uterine. It is a general perception that a relative witness will not shield a real accused and implicate an innocent person in the case of murder of close kin. It is well settled in law that where the prosecution case rests upon the evidence of relative witness, the Court shall scrutinize his evidence with care as a rule of prudence and not as a rule of law and the relationship between the witness and the victim is no ground to discredit the evidence of such witness. We have already held that complainant Ramswaroop received the injuries on 29.09.2005, the date of incident and which are not self- inflicted. It is also a settled law that if a witness sustained injuries in the incident, it is an in-built guarantee of his presence at the scene of crime and it is unlikely that he would spare his actual assailant(s) in order to falsely implicate a person with him
Crl.Appeal 67/2017 22 VI ADJ, Sompeta he has enmity. In this respect, a reference may be Cr.A.
No.491/2007 made to the decisions reported in Arjun and another
Vs. State of Chhattisgarh, (2017) 3 SCC 247, Bramhaswaroop and another Vs. State of U.P., (2011) 6 SCC 288, Vishnu and others
Vs. State of Rajasthan, (2009) 10 SCC 477, Seeman @ Veeranam
Vs. State, 2005 Supreme Court Cases (Cri) 1893 and Dalip Singh
Vs. State of Punjab, AIR 1953 SC 364. We have already held that we have not found any discernible contradiction, discrepancy and inconsistency in the FIR lodged by complainant Ramswaroop, his evidence and his case diary statement. Therefore, the evidence of complainant Ramswaroop cannot be disbelieved just on the ground that he happens to be the son of deceased Jalam Singh.
Insofar as enmity on account of the land disputes between complainant Ramswaroop and his father on one side and the accused persons on the other is concerned, enmity is a double- edged sword, while it can be a basis for false implication, it can also be a basis for the crime. We have already held that the complainant and his father had rightful possession at the time of incident in the Khet where the incident occurred and that no right of private defence had been accrued to the Cr.A.
No.491/2007 accused persons in terms of Section 97 IPC.
“Therefore, the evidence of complainant Ramswaroop
cannot be disbelieved only on the ground that he had land
disputes with the accused persons at the time of incident”.
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On the hand, it is established that the accused persons had committed the crime on account of their land disputes with the complainant party. Thus, the motive behind the crime is also writ large – held by Hon'ble Madhya Pradesh High Court in case
of Jagadish Bheel Vs. State of M.P decided on 9 th day
February, 2018.
31.The other reason assigned by the High Court in recording acquittal of the accused is that P.W.1 and P.W.2 were interested witnesses being relations of deceased and no independent witness was examined by the prosecution. By now it is a well- established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.
32.On the contrary it has now almost become a fashion
that the public is reluctant to appear and depose before
the Court especially in criminal case because of varied
reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy
Crl.Appeal 67/2017 24 VI ADJ, Sompeta cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The High Court has brushed aside the testimony of P.W.1 and P.W.2 on the sole ground that they are interested witnesses being relatives of the deceased.
33.Regarding non examination of an independent witness P.W.9,
K.Bhupal Singh the investigating officer stated that on that day he went to the place of incident and inquired about the witness but none came forward to reveal about the case due to fear. He has also stated that due to double murder in the town in a single day there was terror in public and he imposed S ection 144. In such a situation surcharged with tension and fear psychosis it is not expected of any witness to come and depose about the incident even though they may have seen. Non-examination of independent witnesses, in such a situation, would be no ground to discard the otherwise creditworthy testimony of P.W.1 and
P.W.2, which inspires confidence – held in State of A.P Vs.
Crl.Appeal 67/2017 25 VI ADJ, Sompeta
S.Rayappa and Ors on 14th day of February, 2006.
Now it is Writ large that relative witness is not
necessarily an interested witness and vice versa.
Now let us apply the facts of the case to the facts of
the law as discussed in Supra.
34.Admittedly, P.W-1, P.W-2, 3, and 4 are relatives. In the
Judgment of the Court Below in Para No. 30 it is held that P.W-1 to 5 stated that incident occurred in front of P.W-1's house in the street. Generally, if a dispute arises in a street, some people like neighbours may gather, but in the present case on hand, “P.W-1
to 5 are relatives, as they are all relatives to each other and
are interested witnesses” deposed on behalf of P.W-1 and 2 at this stage and no neighbours were examined. Hence, the accused entitled to be benefit of doubt.
35.At this juncture,this Court perused the Cross
examination of P.W-5, she stated that P.Ws 1 to 3 are not
his relatives. He knows P.W-1 to 3 as they are neighbours
to her.
36.P,W-5 further deposed that P.W-1 to 3 and her husband are cousins. She knows the accused who are their neighbour and there also her cousins.
37.Now it is writ large that not only P.W-1 to 5 are relatives, even A-1 and A-2 also relatives to the P.W-1 to 5.
Crl.Appeal 67/2017 26 VI ADJ, Sompeta
38.Now the question of relative witnesses does not arise. Now the question of interested witnesses is in question.
P.W-1 to 5 are not deriving any kind of benefit from the result of this litigation. As per the defence story there were some disputes existing between the accused and the prosecution witnesses 1 to 5. Then why the Court can not take into consideration the same disputes are the motive for committing the crime?
39.At this juncture it is pertinent to mention that the witnesses are generally reluctant to come forward to depose before the
Court – held in Uttarpradesh Vs Anil Singh AIR 1988 SC 1998.
40.Often, the witnesses are afraid of the accused who are the dare-devils of the locality – held in Mohanlal Vs State (1978)
Cri.LJ 1832 at P.1835.
41.That is why P.W-5 after seeing A-1 beating P.W-1 with a stick on his hand. When she saw that A-1 beating P.W-1, she went
inside her house, clearly reveals that she is afraid of dare
devils.
42.The Para No.32 of the Judgment of the Court below:
Admittedly, P.W-2's house is situated at a distance of 50mts from P.W-1's house, whereas P.W-3's house is situated adjacent to
P.W-1. When the galata had taken place, P.W-3 must arrive first
Crl.Appeal 67/2017 27 VI ADJ, Sompeta to the incident spot but P.W-2 who is about 50mts away first came to spot than P.W-3. It creates doubt in the mind of the Court.
43.P.w-2 is also an injured in this case. He deposed that he sustained a bleeding injury on his fore head. The evidence of
P.W-6 who is a medical expert also deposed in his evidence that
Godavari behara received a small abrasion on the left side of the fore head associated swelling with pain present. There is complete corroboration between he evidence of P.W-2 and P.W-6.
44.At this juncture this court may be permitted to quote that the evidence of thosewitnesses who have also sustained injuries in course of the incident cannot be discarded cheaply – held in
Nagarjit Vs. State 2005 AIR SCW 480.
45.At this juncture this may be a repeat but great respect to
Hon'ble Supreme Court in case of State of Punjab v. Jagir Singh
Baljit Singh and Karam Singh, wherein H.R. Khanna, J., speaking for the Court, observed thus:- “A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to
Crl.Appeal 67/2017 28 VI ADJ, Sompeta
judge the evidence by the yardstick of probabilities, its intrinsic
worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.”
46.P.W-1 to 5 are neighbours and their evidence has a ring of truth which inspired the confidence of this court in believing the case of the prosecution.
47.The evidence of P.W-7, 8 and 9, who are Police witnesses.
Before analysing the evidence of P.W-7 to 9 that there is a
presumption that a person acts honestly equally applies to Police
Officer – held in Aher Raja Vs State AIR 1956 SC 217.
48.The testimony of Police Personnel should be treated in the same manner as any of the other witnesses. Corroboration by independent witnesses is not necessary - held in Karmajit Singh
Vs. State, AIR 2003 SC 1311.
49.There is no rule that Police officers can not be cited as witnesses and their depositions should be treated with suspect – held in Ramswaroop Vs State AIR 2013 SC 2068.
Crl.Appeal 67/2017 29 VI ADJ, Sompeta
50.First and foremost, whether the Police Witnesses are disqualified U/sec 118 of the Indian Evidence Act, 1872 from giving evidence? Certainly Not. Hence, the Police Evidence must be equally given equality along with other witnesses is the observation of this court.
सतयय वद। घरर चर। सववधयवयवनन रव पनररदद। रवततददवव भव। पपततददवव भव। आचवयरददवव भव। अपतपथददवव भव। यवनयनवदवपन करवरपण। तवपन सदपवतवयवपन। नव इतरवपण। यवनयसरवकय ससचपरतवपन तवपन तवयवपवसयवपन। नव इतरवपण। यद कद चवसरतवछनरदयवयसव बनरवहणवद। तदषवय तवयवऽऽसनदन पनरशवपसतवयरन । एष आददशद। एष उपददशद। एतदनसशवसनरन । एवरसपवपसतवयरन ।
Transliterated to English script ‘Satyam vada; dharmam chara; svãdhyãyãn mã pramadaha’ ‘Matruvedo bhava, pitrudevo bhava, atithidevo bhava’ ‘Yãnyanavadyãni karmãni, tãni sevitavyãni, no itarãni’ ‘Yãnyasmãkam sucharitãni tãni tvayopãsyãni, no itarãni, ye ke chãsmachchhreyãnso brãhmanãhã, teshãm tvayã’’sanena prashvasitavyam’ ‘Esha ãdeshaha, esha upadeshaha, etadanushãsanam, evamupãsitavyam’
English Translation
‘Speak the truth. Abide by your dharma. Never be idle in
your studies’‘Know your mother to be like a goddess
(i.e. serve her and please her as if she were a goddess),
know your father to be like a god, know your teacher to be
like a god, know a guest to be like a god’‘O disciples! Only
do those actions which are in accordance with the shastras
and society. Do not perform actions that oppose
this’‘Moreover, only adopt our good conduct, nothing else.
After leaving here, if you find a teacher better than us,
Crl.Appeal 67/2017 30 VI ADJ, Sompeta
then respect him, pay homage to him by offering him a
seat’‘This is our final command. This is the teaching. Go
forth, live according to this’
The maxim is judex damnatur cum nocens absolvitur –
Judge is condemned when guilty is acquitted. Lord
Denning pointed out in Miller v. Minister of Pensions.
51. That degree is well settled. It need not reach certainly, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence “ of Course”, it is possible but not in the least probable”, the case is proved beyond reasonable doubt... It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man. Smelling doubts for the sake of giving benefit of doubt is not the law of the land.
52.In a similar vein the Supreme Court of India observed in
Sucha Singh & Anr. V. Punjab:
Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an
Crl.Appeal 67/2017 31 VI ADJ, Sompeta innocent. Letting the guilty escape is not doing justice according to law. Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hyper sensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish.
53.As Viscount Simon observed in Stirland v. Director of Public Prosecution'
Judge does not preside over a criminal trial merely to see
that no innocent man is punished. A judge also presides to see that a guilty man does not escape.... Both are public duties.... a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent.
54.In the decision of the Canadian Supreme Court, the Court allowed appeal against acquittal of the accused by the Court of appeal in a case where “ the main issue.... is whether the trial
judge erred in law in convicting the respondent, who was
charged with sexual interference with his daughter, on the basis of a date other than the one referred to in the indictment”. The
Crl.Appeal 67/2017 32 VI ADJ, Sompeta
Supreme Court agreed with the view of the dissenting judge in the Court of appeal that “trial fairness was not compromised....
The evidence accepted by the trial judge satisfied her beyond a reasonable doubt that the incident in question did in fact occur regardless of the exact time it took place” and held: “ In our view, the defence was based entirely on a question relating to credibility. The respondent was in no way prejudiced.”
55.In view of discussion in supra, the appeal is partly allowed and Judgement of the Lower Court in CC 146/2013 is set a side.
The Accused No.1 and 2 found not guilty for the offence
U/sec 326 of IPC and they are acquitted U/sec 248(1) of Cr.P.C.
However, the Accused No.1 and 2 are found guilty for the offences U/sec 323 and 324 of IPC and they are Convicted U/sec 248(2) of Cr.P.C. Accused No.1 and 2 are sentenced to simple imprisonment of three months and fine of Rs 500/- each (total 1000-00) for the offence U/sec 323 of IPC, 1860 indefault to payment of the fine amount, they shall under go simple imprisonment for 15 days. And the A-1 and A-2 further sentenced to simple imprisonment of six months and to pay fine of Rs 5000/- each ( total Rs 10000-00) for the offence U/sec 324 of IPC 1860.
in case default of payment of fine, the A-1and A-2 shall under go simple imprisonment for three months, and the fine amount Rs 10,000/- must go to the injured person P.W-1 who received grievous injury and Rs 1000/- to P.W-2 under Sec. 357(3) of
Crl.Appeal 67/2017 33 VI ADJ, Sompeta
Cr.P.C, 1973, out total fine amount as every saint had a past and every sinner has a future. The both sentences are run concurrently.
The Lower Court is hereby directed to proceed with
according to law.
Typed to my dictation, typed by Record Assistant, MLSC, Sompeta, corrected and pronounced by me, in open court this the 20th day of March, 2018.
VI Addl. District and Sessions Judge, Sompeta.
Appendix of evidence Witnesses examined. None/nil
VI Addl. District and Sessions Judge, Sompeta.
Copy to the Judl. Magistrate of 1st Class, Ichapuram