HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 48 Criminal Appeal No. 7244 of 2010 [ENTITY] Appellants Vs [ENTITY] Respondent For Appellant : None For Respondent/State : Shri [ENTITY], A.G.A. WITH Criminal Appeal No. 6484 of 2010 1. [ENTITY] Appellant Vs 2. [ENTITY] Respondent For Appellant : Shri [ENTITY], Advocate. For Respondent/State : Shri [ENTITY], A.G.A. AND Criminal Appeal No. 6447 of 2010 1. [ENTITY] Appellant Vs 2. [ENTITY] Respondent For Appellant : Shri [ENTITY], Advocate. For Respondent/State : Shri [ENTITY], A.G.A. Hon'ble [ENTITY], J.
Hon'ble [ENTITY], J.
Per: [ENTITY], J (1.10.2019)
1. As these three appeals arise out of a common judgement and order dated 17.9.2010 passed by Additional Sessions Judge, Court No. 4, Ghaziabad in Sessions Trial Nos. 678 of 2007 and 431 of 2008, they are being disposed of by this common order.
In the aforesaid Sessions Trial accused-appellants [ENTITY], [ENTITY] and [ENTITY] have been convicted under [SECTION] and [SECTION] of [ACT]. All of them have been sentenced under [SECTION] for life imprisonment with a fine of Rs. 5000/- each, in default of payment of fine, six months additional simple imprisonment each and under [SECTION] for two years rigorous imprisonment with a fine of Rs. 1,000/- each, in default of payment of fine, two months additional simple imprisonment each, whereas accused-appellant, [ENTITY] has been convicted under [SECTION] of [ACT] and sentenced for life imprisonment with a fine of Rs. 5,000/-, in default thereof, six months additional simple imprisonment, with a direction that both the sentences shall run concurrently.
2. In the present case, the name of deceased is [ENTITY], who was a tempo driver. Deceased used to run his tempo somewhere near new bus stand Ghaziabad and in the said area, accused [ENTITY] and his brother [ENTITY] were doing 'gundagardi' and used to extort money from tempo drivers. The act of accused [ENTITY] and [ENTITY] was objected by some of the persons including that of the deceased but the same was not liked by accused [ENTITY] and [ENTITY]. It is said that on 11.04.2007 at about 04:30 pm, accused [ENTITY], [ENTITY] and [ENTITY] apprehended deceased [ENTITY], upon exhortation being made by accused [ENTITY], accused [ENTITY] caught hold the deceased and then accused [ENTITY] and [ENTITY] caused knife injuries to [ENTITY]. Injured was firstly taken to Mariyam Hospital and after being advised from Maryam Hospital, he was taken to Yashoda Hospital where he expired. The incident was witnessed by PW-1, [ENTITY] and PW-3, [ENTITY] both brothers of the deceased. Written report Ex.Ka-1 was lodged at 07:10 pm by PW-1, [ENTITY], based on which FIR Ex.Ka-16 was registered against four accused persons under [SECTION], [SECTION] of [ACT].
3. Inquest on dead body of the deceased was conducted vide Ex.Ka-18 on 12.04.2007 and the body of the deceased was sent for post-mortem which was conducted on 12.04.2007 by PW-8, Dr. [ENTITY] vide Ex.Ka-2.
4. As per Autopsy Surgeon, the following ante-mortem injuries were found on the body of deceased:
(I) stabbed wound (I/W) 2 x 1 cm depth uncertained at base and mid of neck front.
(II) stabbed wound (I/W) 3 x 2 cm Rt. side of abdominal flexure 18 cm from umbilicus.
The cause of death of the deceased was due to shock and haemorrhage as a result of ante-mortem injuries.
5. On the basis of disclosure statements of accused [ENTITY] and [ENTITY], two knives were seized on 15.04.2007 vide Ex.Ka-6 but there is no FSL report on record.
6. While framing charge, the trial judge has framed charges against accused [ENTITY], [ENTITY] and [ENTITY] under [SECTION] and [SECTION] of [ACT]. In addition, charge was also framed against accused [ENTITY] and [ENTITY] under [SECTION] of the [ACT]. Against accused [ENTITY] charge was framed under [SECTION] and [SECTION] of [ACT].
7. So as to hold accused persons guilty, prosecution has examined nine witnesses. Statements of accused persons were recorded under [SECTION] of [ACT] in which, they pleaded their innocence and false implication.
8. By the impugned judgement, the trial Judge has convicted all the four accused-appellants and sentenced them as mentioned in paragraph no. 1 of this judgment. Hence this appeal.
9. Learned counsel for the appellants submits:-
(I) that except PW-1, [ENTITY], all other important witnesses have not supported the prosecution case and have been declared hostile.
(II) that even PW-1, [ENTITY], so called eye witness, has not fully supported the prosecution case and has stated that when he reached to the place of occurrence, there was a crowd of about one thousand people and then he saw his brother in the injured condition. He further submits that PW-1, [ENTITY] has admitted the fact that the FIR was lodged after due deliberation and consultation with the police.
(III) that even the spot map has not been properly drawn by the prosecution in respect of offence under [SECTION] of [ACT]. He submits that it is not clear as to from where PW-1, [ENTITY] had seen the incident.
10. On the other hand, supporting the impugned judgment, it has been argued by the State Counsel that conviction of the appellants is in accordance with law and there is no infirmity in the same. He submits that on account of terror and influence of the accused persons, it appears that witnesses have not supported the prosecution case as was expected from them.
11. We have heard learned counsel for the parties and perused the record.
12. PW-1, [ENTITY] is a brother of the deceased and the informant. His examination-in-chief was done on 30.01.2009 wherein he has stated that on 11.04.2007 at about 04:30 pm, his brother was subjected to knife injuries by accused [ENTITY] and [ENTITY] resulting his death. He has described the entire incident as to the manner in which it had taken place and has further stated that after sustaining injuries, his brother was shifted to Mariyam Hospital and after being advised, he was taken to Yashoda Hospital where he was declared dead. However, in his cross-examination which was done on 11.02.2010 i.e. after about 13 months of the examination-in-chief, he has not supported the prosecution case and has stated that at the time of occurrence, he was sitting in his house along with his another brother [ENTITY] and after hearing commotion, he came out from the house, rushed to the place of occurrence and there he came to know that some incident had taken place with his brother. He further states that when he reached to the place of occurrence, about one thousand people had gathered and there some people have informed him about the incident. Further, he states that he lodged the report after due deliberation and consultation with the police. He further states that for the first time, he has seen the accused persons in the court and earlier he had never seen them.
13. PW-2, [ENTITY] is another eye witness to the incident, has not supported the prosecution case and has been declared hostile.
14. PW-3, [ENTITY] is a brother of the deceased [ENTITY] and PW-1, [ENTITY], has also not supported the prosecution case and has been declared hostile.
15. PW-4, [ENTITY], eye witness to the incident has turned hostile.
16. PW-5, [ENTITY], PW-6, [ENTITY] and PW-7, [ENTITY] other important eye witnesses to the incident, have turned hostile.
17. PW-8, Dr. [ENTITY], conducted postmortem on the body of the deceased.
18. PW-9, [ENTITY] is an Investigating Officer.
19. Close scrutiny of evidence makes it clear that all the important witnesses have not fully supported the prosecution case. PW-1, [ENTITY] is a brother of the deceased, in the examination-in-chief, has supported the prosecution case but later when he was cross examined after one year of his examination-in-chief, he has not supported the prosecution case and has stated that when he reached to the place of occurrence it had already taken place and people gathered there had informed him about the incident. Likewise, he has also stated that he lodged a report after due deliberation and consultation with the police. He has further stated that for the first time he has seen the accused persons in the court and earlier he had never seen them.
20. The most important feature of the case is that the examination-in-chief of PW-1, [ENTITY] was done on 30.01.2009 and date for his cross examination was given as 11.02.2009 and thereafter, for about 30 dates, the matter was adjourned for one reason or the other and most of the times, the applications were filed on behalf of defence seeking adjournment. It is shocking that on many occasion, the trial judge has also adjourned the matter in a casual manner accommodating the defence. On 04.08.2009, even the opportunity of cross examining PW-1, [ENTITY] was closed but later by just imposing a cost of Rs. 100/-, the said order was withdrawn and PW-1 was again permitted to be cross examined. We are constrained to observe here that the court allowed the adjournments for the sake of just asking and this continued for about 13 months, as a result of which, ultimately when PW-1 was cross examined on 11.02.2010, he turned hostile and has not supported the prosecution case. Had the trial court would have been vigilant and had not granted adjournments in a casual manner, perhaps this situation would not have come and the result of the case could have been different.
At this stage, it is relevant to mention here [SECTION] of [ACT] which deals with the power of postpone or adjournment proceedings, the same reads as under:
309. Power to postpone or adjourn proceedings
"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 be recorded:
Provided that when the inquiry or trial relates to an offence under [SECTION], [SECTION], [SECTION], [SECTION] or [SECTION] of the [ACT], 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.] (2) 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 recorded 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;
(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 dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.] Explanation 1.- 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 2.- 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."
21. A bare reading of the above provisions makes it clear that lot of responsibility has been given to the trial judge and the adjournment cannot be granted in a routine or casual manner. If the above provision of law is applied in the present case, it is quite evident that on account of the approach of defence, prosecuting agency and the court, the accused could get sufficient time to ensure that PW-1, [ENTITY] may not support the prosecution case. The trial judges are not supposed to act merely as mute spectators but they are required to take active participation while conducting the trial and they owe some responsibility for fair trial to all the parties.
22. In Doongar Singh and Ors. Vs. The State of [ENTITY]sthan1, the Supreme Court held as under:
"6.This aspect of the matter has received the attention of this Court on number of occasions earlier. In [PRECEDENT] this Court observed it was a pity that the [PRECEDENT] court adjourned the matter for a long interval after commencement of evidence, contrary to the mandate of[SECTION] of the [ACT] Once examination of witnesses begins, the same has to be continued from day-to-day unless evidence of the available witnesses is recorded, except when adjournment beyond the following day has to be granted for reasons recorded. This Court observed:
12. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are "special reasons", which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.
13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a "special reason" for bypassing the mandate of [SECTION] of the Code.
14. 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 themeasures 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 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).
15. The time-frame suggested by a three-Judge Bench of this Court in [PRECEDENT] partly in consideration of the legislative mandate contained in [SECTION] Code. This is what the Bench said on that score: (SCC p. 516, para 16) "16.The [ACT] is comprehensive enough to enable the Magistrate to close the prosecution if the prosecution is unable to produce its witnesses in spite of repeated opportunities. [SECTION] the above view as it enjoins expeditious holding of the proceedings and continuous examination of witnesses from day to day. The section also provides for recording reasons for adjourning the case beyond the following day."
7. The above decision has been repeatedly followed. In [PRECEDENT], this Court noted how adjournment can result in witnesses being won over. It was observed:
"54. Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for agrievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of [SECTION]of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons are there, the trial court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in [PRECEDENT] and [PRECEDENT] ."
8. Again in [ENTITY] versus State of Punjab [2015 (3) SCC 220] this Court noted how unwarranted adjournments during the trial jeopardise the administration of Justice. It was observed:
"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 ostracising the concept that a civilised and orderly society thrives on the 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 [PRECEDENT]:
"26 we are compelled to proceed to reiterate the law and express our anguish 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 were 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 [PRECEDENT] 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."
5. Be it noted, in the said case, the following passage from [PRECEDENT], 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 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."
6. In this regard, it is also fruitful to refer to the authority in [PRECEDENT], 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:"9. 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."
23. After considering the above proposition of law, the Supreme Court in the case of [ENTITY] (Supra) has further observed in paragraph 41 as under:
41."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 offenes 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 notices earlier, in the present case, the cross-examination has taken place after a year and eight 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, 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 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 antathema 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 and ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgement 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, 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 allow to be lonely; a destitute."
24. On the basis of evidence available on record, we have no option but to acquit the appellants as there is no legally admissible evidence against them. The trial judge has erred in law in convicting the accused appellants.
25. Resultantly, the appeals succeed and are allowed. The judgment and order dated 17.9.2010 is hereby set aside.
26. As appellants [ENTITY] and [ENTITY] are reported to be in jail, they be released forthwith, if not required in any other case. Appellants [ENTITY] and [ENTITY] are reported to be on bail, therefore, no further order is required in their respect.
Dated: 1.10.2019 AKK/Mohit ([ENTITY], J) ([ENTITY], J)