Delhi High Court
Prakash vs State on 29 January, 2009
Author: Pradeep Nandrajog
i.12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 29th January, 2009
+ CRL.A. 666/2004
PRAKASH ..... Appellant
Through: Mr. Rajesh Mahajan, Advocate
versus
STATE ..... Respondent
Through: Mr. Pawan Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE ARUNA SURESH
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
: PRADEEP NANDRAJOG, J. (Oral)
1. Since the last 15 days, while hearing criminal
appeals, we have noticed a good number of disturbing features
pertaining to Sessions Trial. The instant case has compelled us
to pen down our experiences, which needless to state, are not
reflective of a healthy and a vibrant criminal justice delivery
mechanism in the District Courts.
2. The warm and the living hands of a Judge are the
best reassurance to an accused that his fundamental right, of
life and liberty, enshrined under the Constitution is preserved
and protected. When these hand turn cold, the first casualty is
Article 21 of the Constitution.
3. From the framing of the charge; recording evidence;
examining the accused under Section 313 Cr.P.C.; hearing final
submissions made by counsel for the accused, and dealing with
the same with reference to the evidence and the circumstances
of the case, till final judgment is pronounced; at each stage the
Presiding Judge has to be in charge of the case.
4. We have been coming across cases where witnesses
to the recovery, without stating that the accused led the police
party to the place and without stating that the accused pointed
out the place wherefrom he could get recovered a particular
weapon of offence, simply state that accompanied by the police
he went to the site and recovery memo Ex.--- was prepared in
his presence. The objection of counsel for the accused is
immediately recorded to the effect that the recovery memo has
not been proved as per law and hence cannot be exhibited. We
have been noticing that in all such cases the objection has been
noted by the Presiding Judge with a further note that it would be
decided at the final stage. In each and every final decision we
find that the learned Judge has not dealt with the objection.
5. Indeed, the damages of this kind can never be
undone unless the witness is recalled for re-examination and
made to depose, as required by law, that he was present at the
spot when the accused got recovered a particular object from a
particular place and that it was seized by the police in his
presence and that the recovery memo was drawn up in his
presence and was thereafter signed by him.
6. Evidence recorded in such manner obviously shows
that the Judge who recorded the evidence was not live to what
was happening in his Court.
7. We have been noticing that a witness of the
prosecution suffers from a momentary memory loss and is not
correctly answering a question put to him by the public
prosecutor. The witness is immediately declared hostile.
8. It is elementary knowledge of law that with the
permission of the Court, even during examination-in-chief, a
suggestion or a leading question can be put to a witness.
9. We have been noticing cases where the witness
wrongly names an accused and is immediately declared hostile.
Otherwise, the witness is fully supportive of the prosecution. On
being declared hostile, the witness immediately corrects himself
that he had made a mistake in referring to A as B and vice-
versa. This has to be avoided for the reason once a witness is
declared hostile the defence immediately pounces upon the
argument that the witness lacks credibility.
10. We have come across a few instances where a
charge was amended mid-trial, but the witnesses on basis of
whose deposition the charge was amended were not re-
summoned for cross examination. It is elementary law that
where, mid-trial, a charge is amended, the relevant witnesses
have to be re-summoned for further cross examination.
11. We have come across at least 3 instances where
incriminating circumstances and in particular the reports of
Forensic Science Laboratories have not been put to the accused
persons; prohibiting the use of said evidence against the
accused.
12. Instant case has revealed another sloppy conduct of
trial. A child witness Kalicharan PW-4, aged eight years when he
deposed has been examined without any Court questions being
put to him to ascertain whether he understood the questions
being put to him. Further, he has been examined after
administering an oath. We wonder how.
13. Prakash who is facing a charge of raping and there
after murdering Jayanti, as also of destroying evidence has been
convicted for the offences punishable for destruction of evidence
and murder of Jayanti.
14. The deposition of PW-15 recorded on 6.3.2003 and
Ex.PW-15/B proved by the witnesses on said date has been
liberally used by the learned Judge who has penned the decision
to convict the appellant. Similarly, the deposition of PW-16 on
29.7.2003 has also been taken into account.
15. The file reveals that PW-15 and PW-16 were
examined on 14.1.2002 and their cross examination was
deferred.
16. The next date was 31.1.2002. The witnesses were
not present. The learned Judge forgot what was he/she to do on
the next date. The matter lingered on.
17. Further witnesses of the prosecution were examined
and cross examined. PW-15 and PW-16 never appeared in Court
and never subjected themselves to be cross examined.
18. On 9.8.2002 learned APP closed the prosecution
evidence. Statement of the accused under Section 313 Cr.P.C.
was recorded on 23.8.2002. Thereafter, DW-1 was examined on
1.10.2002 and matter was adjourned for final arguments. On
1.10.2002 learned Trial Judge noted that PW-15 and PW-16 have
not been cross examined. It was directed that said witnesses be
summoned for cross examination.
19. Surprisingly enough, on 6.3.2003 PW-15 was further
examined by way of examination-in-chief notwithstanding that
on 14.1.2002 her examination-in-chief was complete and matter
was adjourned for cross examination.
20. On 6.3.2003 PW-15 proved Ex.PW-15/B, a document
which is highly inculpatory of the involvement of the appellant,
of course, if proved as per law.
21. PW-16 was cross examined on 29.7.2003.
22. The incriminating circumstances brought on record
after 23.8.2002 had to be put to the appellant; who as per law
was required to be further examined under Section 313 Cr.P.C.
with reference to material brought on record after 23.8.2002.
23. This is elementary law.
24. We note that Ex.PW-15/B proved by PW-15 on
6.3.2000 is an information received at the PCR van naming the
appellant as the person who has committed the offending act.
Indeed, the learned Trial Judge has made a liberal use thereof
while convicting the appellant.
25. This is impermissible in law.
26. We are left with no option but to set aside the
impugned judgment and order dated 22.5.2004. The order of
sentence dated 31.5.2004 is also set aside.
27. Matter is remanded for taking corrective action in
view of this order.
28. A copy of this order is directed to be forwarded by
the Registry to the District and Sessions Judge Delhi Tis Hazari
who shall bring this to the notice of all the Judges of the Higher
Judicial Service and in particular those who are presiding over
the Sessions Division.
29. Noting that the appellant has been in judicial custody
for nearly 8 years we direct that pending trial the appellant shall
be released on bail by the learned Trial Judge on the appellant
furnishing a personal bond in sum of Rs.10,000/- (Rupees Ten
Thousand Only) with two sureties in the like amount to the
satisfaction of the learned Trial Judge.
30. Trial Court Record be returned to the District and
Sessions Judge within 3 days by the Registry through a special
messenger.
31. Since the matter has been delayed enough, the
learned Judge before whom the case shall be revived is directed
to complete the proceedings and pronounce decision within 4
months of the receipt of file by him/her.
PRADEEP NANDRAJOG, J.
ARUNA SURESH, J.
JANUARY 29, 2009
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