R2)
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16"' DAY OF OCTOBER, 2008
BEFORE
THE HON'BLE MR. JUSTICE JAWAD RAHIN|":.j
CRL.R.P. No. 363 OF 2000
BETWEEN: I
1 DINESH S/O CHINNAPPA HEGDE'
AGED ABOUT 33vRS,_ _
R/AT NETTRAVALLI IYADACHAVLVLI..vI,LLAc;E,
SH RINGERI TALuK,CHIxKAI1__AjSALUR' DISTRICT.
V H " jw IPETITIONER
(BY MR D.P. PRASANINA,"AE)'J_.')'«..jj-.x I «I
AND:
1 STATE 0%:.VK;g_'hET.lA_lrgKA'VI":"-if" I A A
BY S,R--ITl--\1GER,I P'Og.ICE.,,.
2 CHANDRASIIEKA-RA.@'--CHANDRu
S/O N1NG'APP'A_HEGDE-.__
AGED ABOUT 30.YR.S",w__'..'0'
R/A-T NETTRAVALLI YADACHALLI
C~ILLA_c5E, SHRINQERII TK,CHIKKAGALUR DISTRI.,
A _ RESPONDENTS
('SRI»,RAJA._ SLJRBRAMANYA BHAT, HCGP FOR R1 AND
SRI-. PR-.AMOfD,R.,SADV. FOR SR1 KEMPEGOWDA, ADV. FOR
>i§<
I THISRETITION IS FILED U/S.397 AND 401 CR.P.C BY
THE AD".!OCATE FOR THE PETITIONER PRAYING THAT THIS
* 'HONfELE= COURT MAY BE PLEASED TO SET ASIDE THE
__3UDC;MENT AND ORDER OF ACQUITTAL DT.1.12.05 PASSED
0 _:BY.._THE C.3 (JR.DN) & JMFC., SRINGERI, IN C.C.NO.63/O5,
THIS PETITION IS COMING ON FOR FINAL HEARING
THIS DAY THIS COURT MADE THE FOLLOWIE\lG:~
ORDER
The Complainant is in revision under Sectionfr3c97
Cr.P.C. assaiiing the judgement in C.C.
the iearned Civil Judge (Jr. Dvn.) & JMFC, i
12~2005 acquitting the respondent} a¢¢u«se«q
offence punishabie under Section.4_3264éanvd–S06 i.’P’£3g A’
2. Heard both sides. ‘ V t
3. The genesis acquittal
of the respondents, i it b l
4. Certain ‘fa”cts’m’a.tei.iia| for consideration are:
Dinesh”*€ A|’o_dge’d a quiremoney (report) whiie
“V*unde~r_j’itreaitmentua’t~£3overnment Hospital, Koppa, that on
was proceeding from his house at 10
3Oi3M_”aAfter’gaytiteriding pooja at Brahmaiingeshwara temple at
v%’–«___’S’amapa~~nn’e, the accused who is respondent No.2 herein
‘oQuaVrre’i«ed with him near field of one Rukminiyamma and
V_._:’v”assau|ted him on the right shoulder with wooden club
iijcausing grievous injuries resulting in dislocation of the
bones. He threatened to kill him. However, CW4 and CW5
came to the spot and rescued him. The report of the
Complainant at Ex.P2 become FIR for investigati_’0~n:’j”–.a’nd
Investigating Officer secured presence of CW1 a.ntl *
noticing incriminating aspects spoken to qa’g.élUs’t_V
the accused filed charge sheet for;”:.the’_’_’offence”;:i_un:.iVsr§i:a.tflé.:.
under Section 326 and 504 IPCl.a’g..ainstA’the
5. He was subjected.—to”-trial, during Viwhich 9
witnesses were examined’ on’ ‘prosecution and
reliance was placedon jthree~V::do:cuV:mei1ts~,. ‘Considering the
evidenceloltlvlivi/:fiv_.,to’Vl§VVV’an:d«».:the_documents, the learned trial
judge held’ i’nsuffic’i’e?nt’ll’t~o::””prove the charge against the
accused andélléconsegvueri-tlv”””acquitted him by the impugned
‘State haslnot challenged the said acquittal, but
the .Con:p:’l’aitn’at’ntVh.as assailed it.
The learned counsel for petitioner ~
xv’lufiiohilp-l_ainVant would submit that impugned judgement is
._rlr’.arbitrary, biased and has been rendered ignoring the
“~._i.n’criminating material evidence on record. He assertively
contends that learned trial judge has not conducted the trial
‘” Q11
;\
as provided for under Code of Criminal Procedure andghad
adopted his own method of conducting trial. He
attention to the fact that three main witnes’s-eséiiigof’thee’*
prosecution PW1 to PW3, who we.r.e~p.r0duced4″‘ii-efo’r”e4_’_the_V
trial court for evidence were not e’>”<4arri'i'_ne'd in.
learned Prosecutor, but theV'l.l_ea.r_nedi"trial _Vjluvdgie'"~h.i.mself " it
examined these witnesses in…exam_inationming—clffief and
recorded cryptic replies to' the
7. He;_”s’ulgm’its was very
much availatile court did not allow
the Sr. these witnesses nor
the Publvlicgggl the witness. Though
incriminating4″4″asp’e.c’tsi”-halife been spoken to by the
p’a.rticula’r’iy,’iVPW5, the learned trial judge has
‘ign’o__r.ed’ referring to certain statements which
are-neith.e.r_contradictions nor inconsistent. He further
1″”‘~.__supmits”that grave injustice is caused to the Complainant as
“g:’th_e~.,_|e’arned trial judge has resorted to the improper
V..pVrdcedure and also ignored material evidence on record.
2;;
y”\rl2
8. The learned Government Pleader had nothing to
say in the matter State has not challenged the acqu”ittal.
Respondent No.2 is duly represented through V.
While supporting the impugned judgement he
of the witnesses are consistent :f’n”mtheiij1.ev.ideVnc_e,”~7He”:
submits that there is contradigctionetein evid_-ence’~oVi*::’the”~.
witnesses. While the Comp|ai’naiit savg. thetf’.:he’1.Vg4suffered
injuries on the right sh’ouAlder;i””Piitl.34land’ eye”wit’ness say
victim suffered injuries on shoulder. He
further submits;..tl’a:aVt:p1’i.ncaAnVsi%steint’«:statern.erji’tv:Vdoes not render
any assistante rightly the acquittal
has beei1..Arecoi*de’ud~ trial judge.
9. ‘V}”‘s«t_Vetl1eVv’o.uts.et’.i:li.’i’is noticed that CW1 to 3, who
.—.yvere_»»’t:endered t3Aefo.r_e___the court for examination in chief,
shave” not._Vbee’ne”ex_amined by the Public Prosecutor assigned
to ‘th«.a’t «Con f_ V V J
10.”e_T’h”e provisions of Section 135 of the Evidence
‘envisages that ‘the order in which witnesses produced
examined shall be regulated by law and practice for the
‘fiithilme being relating to civil and criminal procedure
respectively, and, in the absence of any such law, by the
discretion of court.’ Under the provisions of Section,.Vi».3’_E$._Vof
the Evidence Act, discretion is given to the
admissibility of the evidence. But, the provisionsi:ol:’Siectionlé ‘v
3.37 of the Evidence Act, mandates exami’nat’io’-ng_~i~n;e_it
chief of witnesses by the party’w..ho ca’iif.s’him be called
his examination~in–chief. Therefo’yre,._\und’ou.btedly;: in the
instant case, CW1 to re who have been
called by the prose_cution.»w. are called
by the prosecui.:fo’n}ylit’ is::”foi’;_the_’:bii|j’lVi’cProsecutor assigned
to the court», *t.o:f_ex’am.in’e.’ «themwho is a Prosecutor
appointed under of Section 24 of the Criminal
Procedure Code for of the case and in that regard
_._to examine the witne_ss_es in chief.
scheme of the Code of Criminal
Proce,dureV,. is a prescription of procedure for conduct
trial” dependant upon the nature of charge. The
“coiis_p’et:tus of the provisions contained in Chapter XIX i.e.
V.”l–..flSeHctions 238 to 245 deal with trial of warrant cases and
~ yfsimilarly Chapter–XX deals with trial of summons cases.
Undoubtedly the case in question relates to charge for
offence to be tried as warrant case. Section–242
prescribes the specific procedure for recording of evidence
for prosecution. It reads as under:
“242. Evidence for prosecution:
(1) If the accused refusesfitol:pI’ead__
plead, or claims to be tried–_or th’e_..r.£Viag«.ist-fate”
does not convict th’e_’a:.cuseAd- under”s_ect_:Io–n..2i41,
the Magistrate shalitfix aedwate for the
examination
(2) The Magistrate V”ap’p!__ication of the
prosecuti__on,;i’ss’ue’:: to any of its
witVn_ess:?es_,di.recting hi4_rn.t’o’att’end or to produce
ffff otherwthing.
(3)’_ On ‘the=’fdate_._’i’so:’fixed, the Magistrate shall
proceed” all such evidence as may be
i ” prod’uc_ed”in support of the prosecution.
Pro.vi’de’d._i:h.at the Magistrate may permit the cross-
“‘l’.epxairii’n,a_tio’n”of any witness to be deferred until any
A*—other~wi’tness or witnesses have been examined or
reca|it.any witness for further cross-examination.”
is__ci_ear from the provisions of Section~242 extracted
V.’Vi’-dgaborve that the Magistrate, when the accused pleads not
‘lfguilty, shall fix a date for the examination of the witnesses.
as
Sub~section (2) envisages the Magistrate may, on the
application of the prosecution, issue summons to anyiof-.,its
witnesses directing him to attend or to
document or other thing. Sub–section (3) is
which requires, on the date so MagIi’st.ra’te~_sha|,_l
proceed to take all such evidence asgmay be,.,or.odu”ced in
support of the prosecution. pr’oyiso.”‘.=spieclifically
mandates the Magistrateinigay oe’rmi-t:,th,e-..cross;e$<amination by the defence. The Magistrate is not
"elernlpowered to examine the witnesses in–chief by himself as
is done in the instant case.
12. No doubt Section~165 of the Evidence”‘~–.Act
permits the Judge to put such questions as the V.
feel necessary in order to discover or to obtain propve’r..p’r’oo:’rf V’
of relevant facts. On forming suc’h”‘cP.in.ion;,
may ask any question he pleases, in:’a_ny–_form,”at ‘am: ti~n’1’e,V”~
of any witness or of the party-i..,yabo_ut any or it
irreievant and may order th.e””p’r_foriVu”c7tion ‘o1″”~ any such
document. To exercise ‘ the povyerV”_»..c’o–nferred under
Section~165, the–icircurn;stancesenlurnerated there should
exist. ‘ Thegmanner-“:i_Vn’Vwh–ich._the ‘trial_ has been conducted
in this theumiearned trial Judge has
examineci7th’e% ignoring the provisions
referred to ablove. ‘ –
matter of regret that iearned trial Judge
has questions and eiicited two answers in
‘Vthree.44se.n”ten’ces and that has been made basis foracquittal
At.he…éaccused. The contention of the learned counsel for
Qpetitiolner that whole proceeding as conducted by theltriai
“”i.VVJ’iidge gives an impression that the trial is virtuaiiy stage
managed for grant of an acquittai of the accused, is not
&,%’i/
,1
without substance. Serious view needs to be taken as to
the method appiied to conduct the trial, in contravention of
the prescribed procedure. It is further noticed that the
learned triai judge has recorded no reason as to why
proceeded to examine the witnesses in chief .
requiring the prosecution to do so who was'”‘p’resfent;- as is
evident from the order sheet.
14. To know as to.»’w.hether._the
Prosecutor was avaiiable or notvifhaxre exandinned the LCR
and order sheet. The ord-e.r”she_et;Vtof’.G–35iAi~+2O05 shows that
when CW1 the learned trial judge
the StateVFfub|Aic very much available and
present. ., No rea_son..i”s recorded as to why the learned State
I-l.’v’V’Pub|it;— Pro’srec’u.tor nadna examined the witnesses in chief
or. as_r.tow:li–et’her_he was prevented.
A ‘–.15.’ThTislis also a reason to take note of the conduct
the concerned Public Prosecutor. In the circumstances,
direction needs to be issued to the Director of
’11’ ‘w.!1>.ro.secution to obtain explanation from the concerned State
A ” ~ ” Public Prosecutor as to why the witness Cwl to 6 were not
I?
approach of the trial court in appreciation of the evidence,
unjust acquittal is recorded.
16. Further, it is noticed that though
identified the assailant and has mentioned the_–A4’p’revse’ric’e~f
other witnesses, but the learned tria.l~jud4ge if
evidence observing that;
“pwa deposed that o’.’~g§i3,1x–3~2ioo5.
complaint of injured Comp|a’i«nant_ he regi_stere}:l
crime in Cr. No.25/LG’5e_. PW9_’diepVos’e-d regarding
the receiving of memou,f’rom__i’hospit_al and
recording of”statem’e’n’t::tof.’C.o>rnp!Vainant in the
ho7s__pit_al.fAVVVT’i1e.__iWVg7’PSI___d–eposed with regard to
drawing up the spot and seizure
of club. ‘ar1VCl[–_ completion of formal
‘ v.»’i.:nvestigatiVo’ri~wSubmission of charge sheet. As
“V.’the:prosecution failed to prove the alleged
‘in’c.i:cie_nt4Vxthrough the mouth of very material
the evidence of these witnesses
formal in nature is of no avail.”
A. ,_’17.V°”.This observation is totally contradictory to the
‘.’_j«~stiatement on oath of PW5, which reads:
/’
(M-
/3
” The accused is the son of my father’s elder
brother. On 30-03-2005 while I was coming
towards my house at about 1G–30PM from
Brahmalingeshwara temple at Samapanne,é.._é:tVV”‘fl”~t..V”‘l
that tiem the accused picked up the ”
with me in the field of one Rukminiuam’ma:.§::~nd”V: =
assaulted me on my right shoulder’
of wooden club, due to which*I__ suVstain’evd_ast.ili«. V’
injuries. Further the accu.s:ed_threatenedhto
me. At that time the the
spot and pacified :t’h_e g’al’ata’l:,_ffhereafteryivvI
came to my house: my
telephone ‘?’.iE5__in C;§i’so’r’J1:’V§rV.:5″i1/:d~.F?Ven:..V’t’here was
no bus tolgoitai Sr’in.g’eEi'”P;’st. and to
loclolefllthe _ .V
Such assertli”o.n’vi’ctim was dislodged in cross
“‘~examiiniatylon…y_Therefo~r-egthe trial court had to record reason
rlto’-w’h_y’ls’uch*–.”evidence had to be ignored. In the
circLIm’stanAcesi.,_ am satisfied that the order passed by the
VV._’vlearned trial judge acquitting the accused could hardly be
“s_’us.tali”n«ed and require to be set aside. Accordingly, the
.___”sarne is set aside.
flu