Karnataka High Court
State Of Karnataka By Peenya Police ... vs Byrappa @ Byregowda on 24 July, 2006
Equivalent citations: 2006 (5) AIR KAR R 406
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT N.S. Veerabhadraiah, J.
1. This is one of unfortunate case, where it has ended in judgment of acquittal of the accused on account of non-examination of the injured Smt. Narasamma and the Medical Officer.
2. The accused-Byrappa @ Byregowda and the injured-Smt. Narasamma are the husband and wife. The accused suspected the fidelity of his wife and on that ground, on 21 -12-1999 at about 2.00 p.m., he assaulted her with a chopper, causing grievous injury to her legs and also severance of right hand. The "Hoysala Police" headed by P.W. 7-S.C. Narayana, Assistant Sub-Inspector, coming to know of the incident, proceeded near the house of the accused and shifted the injured-Smt. Narasamma to K.C. General Hospital, Bangalore. After first aid, the injured was shifted to Victoria Hospital, Bangalore. P.W. 8-Chandru, Sub-Inspector of Police, on receiving the intimation from the Victoria Hospital, proceeded there and recorded the statement of the injured-Smt. Narasamma and registered a case in Crime No. 605/1999 for the offence Under Section 307 IPC and forwarded the FIR as per Ex.P8 to the jurisdictional Magistrate. After completion of the investigation, filed charge sheet.
The Learned X Additional City Civil and Sessions Judge, Bangalore City, in S.C. No. 270/2000 by Judgment dated 7.4.2001, acquitted the accused. It is this Judgment of acquittal, which is questioned in the present appeal.
3. We were taken through the Judgment and depositions by Sri P.M. Nawaz, Learned Government Pleader and also by Sri. Sharanappa Mattur, Learned Amicus Curiae.
4. After going through the records, it establishes the fact that P.W. 7-S.C. Narayana, ASL, Hoysala Police, shifted the injured-Smt. Narasamma to K.C. General Hospital. After first aid, she was taken to Victoria Hospital for further treatment. It is thereafter, P.W. 8-Chandru, PS1., proceeds to the hospital and recorded the statement of the injured and registered a case. In the present case, the Court issued NB W for production of the inj ured C. W-1 -Smt. Narasamma, for recording of her evidence. But, P.W. 9-G. Venkataiah-Head Constable, who went to execute the warrant could not able to execute the same on the ground that the complainant-Smt. Narasamma was bed ridden and both of her legs were put under plaster and that she was not in a position to move about. The prosecution examined P. W. 9-G Venkataiah, who has clearly stated that as the complainant/injured was bed ridden on account of the injury suffered, he could not able to execute the warrant and to secure her before the Court.
The learned X Additional City Civil and Sessions Judge further without taking any coercive step as against the doctor and also not taking step as required Under Section 284 Criminal Procedure Code proceeded to render a Judgment of acquittal.
5. It is seen that where it is not possible for a witness to attend the Court, the procedure contemplated is Under Section 284 Criminal Procedure Code to examine the witness by the Court-Commissioner. The said provision is ignored by the prosecution and also by the Court, which has led to miscarriage of justice, hi the present case, Ex.P13-Accident Register Extract shows that the injured-Smt. Narasamma had suffered with the following injuries:
1. Cut lacerated wound over the right leg 8x2,3x2 with bleeding.
2. Cut lacerated wound over the left leg 3x2,3x2 with bleeding.
3. Cut lacerated wound over the right wrist 3x2, 4x2 with bleeding.
The above injuries have clearly establishes that the complainant-Smt. Narasamma had suffered with severe cut injuries. Therefore, the non-examination of the injured-Smt. Narasamma leads to miscarriage of justice.
6. Section 284 Criminal Procedure Code thus reads:
284. When attendance of witness may be dispensed with and commission issued.- (1) Whenever, in the course of any inquiry, trial or other proceeding under this Code, it appears to a Court or Magistrate that the examination of a witness is necessary for the ends of justice, and that the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable, the Court or Magistrate may dispense with such attendance and may issue a commission for the examination of the witness in accordance with the provisions of this Chapter:
Provided that where the examination of the President or the Vice-President of India or the Governor of a State or the Administrator of a Union Territory as a witness is necessary for the ends of justice, a commission shall be issued for the examination of such a witness.
(2) The Court may, when issuing a commission for the examination of a witness for the prosecution, direct that such amount as the Court considers reasonable to meet the expenses of the accused, including the pleader's fees, be paid by the prosecution.
A reading of Section 284 Criminal Procedure Code makes clear that where a witness could not be procured before the Court and that it is so essential to meet the ends of justice, such witness have to be examined through a Commissioner. Sub-section (2) of Section 284 Criminal Procedure Code further makes clear that the expenses have to be meted out by the prosecution. Therefore, on such deposit of the amount towards the expenses of the Commission and the pleader as the case may be, allow such witness to be examined.
7. The question of examining the witness on Commission arises in the case where such a witness is disabled to attend the Court due to hazardous condition of their health or due to old age, not in a position to move about or the witness is incapable of attending the Court for any other reason. In such cases, the Court has to exercise its power to examine the witness to see that no such miscarriage of justice does takes place.
8. It is unnecessary to go to the merits of the case at this stage as we have come to the conclusion that the injured-Smt. Narasamma and the Doctor have to be examined in this case. Therefore, the Judgment of acquittal rendered by the Learned X Additional City Civil and Sessions Judge is set aside by directing the Learned X Additional City Civil and Sessions Judge to proceed in accordance with law, as provided Under Section 284 Criminal Procedure Code either by securing the injured-Smt. Narasamma or examining her through the Court-Commissioner at the costs of the Prosecution. The Court shall appoint a Court-Commissioner for examination of the injured-Smt. Narasamma and then dispose of the matter in accordance with law, within a period of three months from this day by providing an opportunity to both sides.
Accordingly, the judgment of acquittal is hereby set aside by allowing the appeal.
The accused-Byrappa @ Byregowda is now in the custody. Therefore, the Learned X Additional City Civil and Sessions Judge, Bangalore City, shall secure the accused from the central prison and proceed to dispose of the matter.
The fee of the Learned Amicus Curiae is fixed at Rs. 2,000.00.
We have noticed in several cases the Trial Court have closed the prosecution side on the ground that the witnesses were not made available before the Court. This is nothing but unhealthy practice, which has to be borne in mind by the Trial Court that they ensure to get such witnesses to examine wherever it is so essential in the interest of justice or otherwise, it results that the real accused persons escape from the clutches of law unpunished.
The Registrar (Judicial) is directed to submit a copy of this Judgment to the Trial Courts and to the Director of Prosecution.