IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 16 TH DAY OF NOVEMBER, 2011 THE HONBLE MRJUSTICE MOHAN SHANTANAGOUDAR AND THE HONBLE MRJUSTICE RAVI MALIMATH CRIMINAL APPEAL N02634/2009 BETWEEN: The StEte of Karrataka By Lakshmeshwar PoUce Durgappa Basappa Harijan Aged 32 years 0cc: Driver R/oGojanur Tauk: Shirahatti This criminal appeal is filed under Sections 378(1) and (3) of CrPC. by the advocate of the appellant praying that this Hon’ble Court may be pleased to aran t leave to appeal arianst the luaament and orcir or acautaI dated 5 2000 passed by the Distnct and Sessions Judqe at Gadaa in SCNo35/200S, acquittinq the respondenLaccused of tPe offence puntshable under Sections 498-A and 302 of IPC, This criminal appeal coming on for hearing, this day MOHANSHANTANAGOUDAR, J, delivered the following: JUDGMENT The judgment and order of acquittal passed by the Sessions Court, Gadag, in SC35/2008 is called in question n this appeal by the State, on the oround that nc opportunity of being heard is given to the prosecution. 2. The case of the prosecution in brief is that the deceased Mariyawwa, daughter of CW. 7-Gourawwa, Since the date of marriaqe, the accused allegedly used to subject Mariyawwa to c rueltv for one or the other reason He used to a&sault her, humilnte her, harass her ml a’ a i cult of ‘vh I i wa td Mar ,‘aw used to go to her parents place veiy often and tay for 2 to 3 months. At one point of time ,he went to her parents place and stayed for two years However, after pacifying her the accused brought Mariyawwe back to her matrimonial house [-Iders advised the accused to conduct himself properly with Mariyawwa and to ead happy married life On the date of incidcnt e on 1/ 6 2006 the accused came to tht. houst in th evcnir g md starttd quarrciling ‘vitt hc. fr CEaSE.d o i . tty ‘atter ,t3t I ult o 13 y hl c takr € or I. -4- The people who had gathered, shifted Mariyawwa to Lakshmeshwara Government Hospital in a private vehicle. The Medical Officer of Lakshmeshwara Government Hospital advised to shift the injured to KIMS, Hubli. She was shifted to KIMS, Hubli. The Hospital authorities informed Lakshmeshwara Police Station. The Sub Inspector of Police directed PWs.5 and 6 to record the statement of Mariyawwa if she was in a position to give statement. After meeting Dr.N.I.Hebasur, PWs.5 and 6 (Police Constables) went to record the statement of Mariyawwa as the Doctor opined that she was in a position to give statement. Accordingly, her statement was recorded by PWs.6 as per Ex.P6 in the presence of PW.5 as well as the Doctor. Based on such statement, Crime No.83/2008 came to be registered. The police t/N after investigation, laid the charge for the offences punishable under Sections 498-A and 302 of IPC. 3. We find from the order sheet maintained by the Court below that the Court below hurriedly disposed of the matter without giving reasonable opportunity to the prosecution to cross-examine the hostile witnesses. 12 witnesses were examined on behalf of the prosecution and 13 documents were got marked. All the 12 witnesses were examined on 30. 12.2008 and 31.12.2008. On both these dates, the Public Prosecutor was absent. The eye witnesses, viz., PWs.1, 2, 7, 8 and 9 have turned hostile. Unfortunately they could not be cross-examined by the prosecution, inasmuch as the Prosecutor himself was absent on those dates. The order sheet does not mention either about the absence or the V) 6 presence of the Prosecutor. However, the certified copy of the deposition clearly revEals that the Public Prosecutor was net preset t and tht witnes es re not ros examined by the Prosecutor The matter was posted on 5.1.2009 from 31 12.2008. On 5 1 2009 following noting was found in the order sheet maintained by the Court below’ “Arcuwd pioduc ed in J C PP not present. Adv for accused present Out of 33 prosecution witnesses, 12 have entered into witness box bxcept Police personnel other prosecution witnesses hat a tnrnad hnctsla tn th n nt. I n mplai ant he em de’’ he mr Motw fth ii wnn c t itn h y ‘7 -7- were to be examined, the case of the prosecution will not be improved in any way. Therefore, side of the prosecution is taken as dosed. For 313 statement kept by. 4. From the above, it is clear that the Court below has prejudged the issue. Merely because the witnesses have turned hostile, it is not open for the Sessions Court to close the matter by acquitting the accused. The Sessions Judge, in our considered opinion, has acted recklessly and negligently. Learned Judge has not applied his mind judiciously to the facts of the case. The Sessions Court while trying the matter should try the same with all seriousness with a mind to do complete justice. Even on 5.1.2009, the Public Prosecutor was not present. Reason for the same is not forthcoming. On 5.1.2009 the statement of the accused under Section 313 vs -8- Cr.P.C. is recorded and on the very day the judgment is passed acquitting the accused. 5. We find from the record that CWs.7 and 8 are the mother and brother of the deceased respectively. They are yet to be examined. Ex.P6 is stated to have been recorded based on the statement of the deceased herself. Whether dying declaration so made is believable or not is to be decided by the Court below. Three paragraphs are written for coming to the conclusion. The entire reasoning portion is concluded within one page. The Sessions Judge has decided the matter in most arbitrary way. It is not the way with which a Sessions Case should be dealt with. CWs.7 and 8, the mother and brother of the deceased, who are supposed to speak about the ill treatment meted out against the deceased by the accused, are not yet examined. CWs.23 and 25 are the — C) — elderly persons, who participated in Panchayat held to safeguard the interest of the matrimonial house of the deceased. CWs.14, 15 and 16 are the Villagers who know about the ill-treatment. All these witnesses are yet to be examined. Even if the case of the prosecution is not proved for the offence punishable under Section 302 of IPC, the material prima fade may reveal the offence punishable under Section 306 of PC, subject to the evidence to be collected. Be that as it may, the entire matter has to be considered after a full-pledged trial. The Sessions Court cannot decide the matter in such a great hurry. In view of the same, the impugned judgment cannot be sustained. The matter has to be remanded to the Court below for giving opportunity to the prosecution to lead the evidence and to cross-examine the hostile witnesses. - 10 - The Trial Court is also directed to frame alternative charge for the offence punishable under Section 306 of IPC. Accordingly, the following order is made: The judgment and order of acquittal dated 5.1.2009 passed in SC.No.35/2008, stands set aside. The matter is remitted to the Court below for fresh disposal in accordance with law. The Court below is directed to frame the charge for the offence punishable under Section 306 of IPC also in the alternative. The matter shall be decided in accordance with law after giving opportunity to both the parties. It is open for the prosecution to cross-examine the hostile witnesses. Since the Sessions Case is of the year 2008, the Sessions Court shall decide the matter in accordance with law, as early as possible, but not later than the outer limit of ten months from the date of receipt of this 7s, — II — order. The prosecution as well as the defence shall co operate for early disposal of the matter. The observations made during this order, shall not influence the Trial Court in any manner for deciding the case on merits. Appeal is allowed and remanded in the aforementioned terms. Sd! JUDGE sal *ck/..