duty of the court to produce witness in criminal case bombay HC

Bombay High Court
1 crra379.02
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL REVISION APPLICATION NO. 379 OF 2002
1] Shankar s/o Shivappa Patale,
age 55 years, occ. Agril.,
2] Shivraj s/o Shankar Patale,
age 27 years, occ. Agril..,
Both R/o Murum, Tq.Omerga,
Dist. Osmanabad …Applicants
[No.1 Complainant & No.2 Injured]
VERSUS
1] Ishaq s/o Bashamiya Bhajiwale,
age 31 years, occ. Tailor,
2] Younus s/o Bashamiya Bhajiwale,
age 28 years, occ. Tailor,
3] Asghar s/o Bashamiya Bhajiwale,
age 35 years, occ. Labour,
4] Layagali s/o Bashamiya Bhajiwale,
age 33 years, occ. Household,
5] Zamirbee Bashamiya Bhajiwale,
age 68 years, occ. Household,
All residing at Murum, Tq.Omerga,
District Osmanabad,
6] The State of Maharashtra …Respondents
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…..
Shri Mohit Deshmukh, advocate h/f
Shri S.G.Chapalgaonkar, advocate for applicants
Shri Nilkanth Pawade, advocate h/f
Shri L.C.Patil, advocate for respondent nos. 1 to 5
Shri V.P.Kadam, A.P.P. for respondent no.6
…..
CORAM : V.M.DESHPANDE, J.
DATED : 18 th February, 2015
ORAL JUDGMENT : 1]
This is a Revision against the judgment and order of
acquittal, passed by the Judicial Magistrate, First Class,
Omerga, dated 14.10.2002 in Regular Criminal Case No. 23 of
1999, whereby the learned Magistrate acquitted the present
respondent nos. 1 to 5 for the offences punishable under
Sections 147, 148, 324, 326 r/w 149 of the Indian Penal Code.
The present Revision is preferred by Shankar Shivappa Patale
(PW 2), who is the first informant and Shivraj Shankar Patale,
the injured (PW 3).
2] I have heard Shri Mohit Deshmukh, advocate holding
for Shri S.G.Chapalgaonkar, learned counsel for the applicants,
Shri Nilkanth Pawade, learned counsel for respondent nos. 1 to
5 and Shri V.P.Kadam, learned Additional Public Prosecutor or
respondent no.6/State.
3] Shankar Shivappa Patale, who was examined as PW
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2, lodged report with police station Murum on 4.1.1999. Since,
the said report (Exh.37) was disclosing commission of
cognizable offence, police authorities registered the same as
Crime No. 5 of 1999 for the offences punishable under Sections
147, 148, 324, 326 r/w 149 of the Indian Penal Code. After
completion of usual investigation, the investigating officer was
of the opinion that there is sufficient material collected during
the course of the investigation against the accused persons.
Therefore, he filed charge sheet in the court of Judicial
Magistrate, First Class, Omerga vide charge sheet no. 11 of
1999 on 15.2.1999.
4] The charge was framed by the learned Magistrate
vide Exh.28 in Regular Criminal Case No. 23 of 1999 against
the accused/respondent nos. 1 to 5 for the offence punishable
under Sections 147, 148, 149, 324, 326 r/w 149 of the Indian
Penal Code. All the accused abjured their guilt and claimed for
their trial.
5] The prosecution examined in all nine witnesses and
also relied upon various documents which were duly proved
during the course of the trial. The learned Magistrate vide
impugned judgment was pleased to record a finding that the
prosecution has failed to bring home the guilt of respondent
nos. 1 to 5, and therefore, passed the impugned order of
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acquittal.
Though the State did not prefer any appeal
questioning the correctness of the said judgment of acquittal,
the first informant and the injured approached this court in the
year 2002 by filing the present Criminal Revision, which was
admitted by this court and the record and proceedings were
also called.
With the assistance of learned counsel for the parties
and the learned Additional Public Prosecutor, I have gone
through the record and proceedings.
6] The record reveals that an application was moved by
the present applicant no.1 to conduct the proceedings. The
application is at Exh.64. Though, the phraseology used in the
application may be incorrect, sum and substance of the said
application was to assist the learned Public Prosecutor, who
was incharge of the case, and the prosecution on 7.12.2001
gave no objection to the said application, and accordingly,
learned Magistrate granted the said application and thereby
permitted applicant no.1 to assist the Public Prosecutor.
7] The evidence of PW 2 Shankar Patale, the first
informant is in consonance with and on the line of the first
information report. Crossexamination
at the hands of all the
accused could not destroy the basic fabric of the evidence.
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Shivraj Patale (PW 3) and Sharnappa Patale (PW 5),
who were injured in the incident in question were also examined
by the prosecution. In the evidence of PW 3 Shivraj, it has
come on record that accused Younus gave knife blow to him.
His evidence would reveal that the said witness withstood
searching crossexamination
of the learned crossexaminer.
The only material omission that the crossexaminer
was able to
point out is in respect of he having seen accused Asgar giving a
knife blow on the stomach of his brother PW 5 Sharanappa.
However, the evidence of Sharanappa (PW 5) clearly shows
that he was assaulted by accused Asgar. His testimony also
withstood searching crossexamination.
8] PW 4 is Dr. Shivshankar Harlyya. He has medically
examined (PW 3) Shivraj Patale and Sharnappa Patale (PW 5).
Their injury certificates are duly proved by him at Exhs. 44 and
45, respectively. In crossexamination,
it is specifically brought
on record that at the Rural Hospital, Murum since there was no
facility or instrument to check the depth of the injury on the
abdomen, the doctor was required to send the injured at
Solapur, and accordingly, Shivraj (PW 3) and Sharnappa (PW
5) were sent to Civil Hospital, Solapur. Worth to note is the
denial of suggestion given to doctor that the injuries were
caused due to fall on the zink sheet. The injuries appearing in
injury certificates Exhs. 44 and 45 are as under ::::
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Shranappa (PW 5) Exh.44
“ Cut injury on left hypochondarica region 1 x ½
cm. X 1 cm. Bleeding present oblique in nature
abdoment tenderness and garding present. Age
of injury is within 3 hrs and referred to Civil
Hospital Solapur.
Caused by sharp instrument. Nature of injury
referred to Civil Hospital Solapur.”
Shivraj (PW 3) Exh.45
“ Cut injury on back, lumbar region 1 x ¾ cm.
bleeding present caused by sharp instrument,
within 3 hrs, referred to Civil Hospital, Solapur for
further treatment and opinion regarding nature of
injury.”
Thus, the injuries mentioned in Exhs. 44 and 45 are completely
ruled out due to accident.
9] In spite of overwhelming evidence available on
record, the learned trial court has acquitted the accused
persons on very flimsy grounds. According to the learned trial
court, since the evidence of the doctor does not show the
nature of the injury, the accused cannot be convicted. True it
is, in the injury certificate or during the course of the evidence,
PW 4 Dr. Shivshankar did not specify as to whether the injuries
were grievous or not. Merely because he has not stated that
the injuries were grievous or not, that does not absolve the
liability for the offence punishable under Section 324 of the
Indian Penal Code. In spite of said material available on record
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and in spite of the fact that the accused persons were also
charged for the offence punishable under Section 324 of the
Indian Penal Code, for no reason the learned trial court has
acquitted the accused persons for the offence punishable under
Section 324 of the Indian Penal Code.
10] Further disturbing fact emerging from the record is
that the learned trial court has acquitted the accused persons
for not examining the investigating officer and the doctor from
Solapur where the injured persons were referred for further
medical examination. The reason given by the learned
Magistrate cannot stand to the scrutiny of law.
11] In the present case, the investigating officer is one
Shri K.R.Rathod. At the time of evidence Shri K.R.Rathod was
posted as Police SubInspector
at police station, Tuljapur. The
record reveals that summons were issued to Shri K.R.Rathod,
Police SubInspector
and the said report is available on record
at Exh.D85.
The said summons is duly served on Shri
K.R.Rathod. In spite of receipt of the said summons, for the
reasons best known to Shri K.R.Rathod, he did not appear
before the court.
12] Once the learned Magistrate issued summons to Shri
K.R.Rathod and in obedience to the said summons if he is not
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appearing before the court, it was the duty of the learned
Magistrate to procure his presence. The courts, in the present
case the Magistrate, cannot remain mute spectator. In an
appropriate event, it is the duty of the learned Magistrate to
intervene and stepin
to administer the criminal justice
effectively. Therefore, it was incumbent on the part of the
learned Magistrate to see that the person against whom the
summons is issued is before the court, and for that, it was for
the Magistrate to take suitable steps. The learned Magistrate
cannot absolve his duty on the ground that no application is
moved by the prosecution for issuing bailable or nonbailable
warrant. The learned prosecutor incharge of the file is also
officer of the court and is part and parcel in the process of
administration of criminal justice. However, ultimately, it is the
learned Magistrate, who has to control the situation and deliver
the justice to the victim. Therefore, in my view, the learned
Magistrate has committed a serious wrong in not issuing
appropriate directions to secure the presence of Shri
K.R.Rathod, Police SubInspector
and ultimately extended
benefit in favour of the accused persons.
13] Another reason is nonexamination
of the doctor from
the Hospital at Solapur. The summons was issued to Dr.
Godalle, who has examined the injured PW 3 Shivraj and PW 5
Sharnappa at the Civil Hospital, Solapur. The summons is duly
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served upon Dr. Godalle. In fact, it is the present applicant,
who filed an application (Exh.68) for issuance of summons to
Dr. Godalle on 7.12.2001 and the learned Magistrate on
19.1.2002 was pleased to allow the said application and issued
witness summons to Dr. Godalle. Thus, the first informant who
was permitted to participate in the proceedings has done his
part by moving appropriate application for securing presence of
the witness. However, it appears that it is the learned
Magistrate, who has abdicated his duty and has failed in not
taking suitable steps, which the Magistrate was obliged to
perform and to take necessary steps. It appears that the
learned Magistrate remained mute spectator. Therefore, the
miscarriage of justice has occurred in the present matter.
14] The impugned order clearly shows that it is the
outcome of perverse approach on the part of learned
Magistrate, in as much as in spite of the fact that there was
evidence available on record in the nature of testimony of PW 3
Shivraj and PW 5 Sharnappa, which clearly states about the
assault on them by means of Jambia and knife, the accused
were liable for conviction for the offences punishable under
Section 324, if not for the offence punishable under Section 326
of the Indian Penal Code.
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15] In that view of the matter, present Criminal Revision
Application is allowed.
The matter is remanded back to the learned Judicial
Magistrate, First Class, Omerga, who is directed to take
immediate steps for procuring presence of the Dr. Godalle and
K.R.Rathod by taking appropriate steps and also decide the
case afresh on the basis of their evidence available on record.
The Registrar (Judicial) is directed to remit back the
record forthwith.
The matter being old one, it is expected from the
Magistrate to show the urgency.
Rule is made absolute in the above terms.
[V.M.DESHPANDE, J.]
dbm/crra379.02
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