Rajasthan High Court - Jaipur
Appeal Under Section 374 Cr.P.C. ... vs . Jaswant Singh @Fakru) Whereby, The ... on 31 March, 2015
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN BENCH AT JAIPUR
J U D G M E N T
D.B. CRIMINAL APPEAL No.141/2007.
Jaswant Singh @Fakru
Vs.
State of Rajasthan
Appeal under Section 374 Cr.P.C. against the judgment dated 19/10/2006 rendered by the court of Additional Sessions Judge (Fast Track) No.4, Bharatpur camp at Deeg in Sessions Case No.09/2006 (State Vs. Jaswant Singh @Fakru) whereby, the accused-appellant has been convicted and sentenced for offence u/S.302 IPC and Section 3/25 of the Arms Act.
Date of Judgment :- March 31, 2015.
Q U O R U M
HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
HON'BLE MRS.JUSTICE NISHA GUPTA
Shri Rajesh Sharma for the accused-appellant.
Shri N.S. Dhakad, Public Prosecutor for the State.
****
BY THE COURT:- (Per : Kanwaljit Singh Ahluwalia, J.) (Oral)
The present appeal has been filed against the judgment dated 19/10/2006 rendered by the court of Additional Sessions Judge (Fast Track) No.4, Bharatpur camp at Deeg in Sessions Case No.09/2006 (State Vs. Jaswant Singh @Fakru) whereby, the accused-appellant has been convicted for offence u/S.302 IPC and Section 3/25 of the Arms Act and has been sentenced, as under:-
for offence u/S.302 IPC:- Life Imprisonment and pay a fine of Rs.1000/- and in default thereof, to further undergo one month simple imprisonment.
for offence u/S.3/25 of the Arms Act:- Simple Imprisonment for three years pay a fine of Rs.1000/- and in default thereof, to further undergo one month simple imprisonment.
2) Accused-appellant Jaswant Singh @Fakru was tried by the court of Additional Sessions Judge (Fast Track) No.4, Bharatpur camp at Deeg for causing murder of Baldev Singh. As per prosecution, on 08/03/2005 at about 1.00 p.m., Baldev Singh S/o Singara Singh (PW5) complainant was going on motorcycle along with Milkeet Singh (PW8) grand-son of the complainant. It is stated that on the said day at about 4.00 p.m., present appellant fired a short from countrymade pistol at Baldev Singh and caused his death.
3) Shri Rajesh Sharma, counsel appearing for the appellant before starting his argument has submitted that appellant being a poor person could not engage the counsel and, therefore, the counsel was provided to the appellant by the Legal Aid Service Authority. Counsel for the appellant to fortify above submission has drawn our attention to the order dated 19/10/2005, which reads, as under:-
19.10.05 Addl. PP. ??.? ?????? J.C. ?? ??.
?????? ???? ??????? ???
?????? ?? ????? ???? ?? ???? ??? ???????? ???? ??? ??: ?????? ????? ?????? ?? ????? ?????????? ??? ????
?????? ??? ????? ?????? 11.11.05 ?? ??? ?? ?? ?? ?????? J.C. ??? ????"
4) Counsel for the appellant submits that Vishan Singh (PW1) and Bhuri Singh (PW2) were examined. Opportunity was given to the accused to cross-examine them and accused had not cross-examined those witnesses. It is contended that at that time, counsel for the accused was not present in court. So far as Vishan Singh (PW1) and Bhuri Singh (PW2) are concerned, Vishan Singh (PW1) had attested the inquest proceedings vide Ex.P1 and Bhuri Singh (PW2) had attested the arrest memo vide Ex.P2. Nothing hinges upon these two witnesses and in fact, opportunity was also granted to the accused to cross-examine them. He did not raise any plea that counsel was not available therefore, cross-examination be deferred. Therefore, we are of the view that so far as non-cross-examination of Vishan Singh (PW1) and Bhuri Singh (PW2) is concerned, same has caused no prejudice to the appellant. Furthermore, an application u/S.311 Cr.P.C. was filed at the subsequent stage and appellant had not raised any plea that Vishan Singh (PW1) and Bhuri Singh (PW2) be recalled for cross-examination.
5) The issue in controversy is examination of Dr.Pashupati Lal Das (PW13), who conducted the autopsy on the dead-body of Baldev Singh, Gyan Singh (PW14), the officer from the District Collector, who had given sanction for prosecution for appellant under the Arms Act and Satish Kumar (PW15), investigation officer. Indeed, Dr.Pashupati Lal Das (PW13) conducted the autopsy and has proved medical evidence and Satish Kumar (PW15) has proved the various facets of investigation and both are material witnesses.
6) On 13/06/2006, the examination-in-chief of Dr.Pashupati Lal Das (PW13) was recorded and statement (examination-in-chief) of Satish Kumar (PW15), investigation officer was recorded on 15/07/2006. Below the cross examination of Dr.Pashupati Lal Das (PW13), the court had given the following note:-
"???? ???????? ?? ??? ????? ?? ???? ???? ??? ?? ???"
7) Somewhat identical note has also been given below the testimony of Satish Kumar (PW15), which reads, as under:-
"???? ?????? ?? ????????? ????????? ???? ?? ???? ????? ????? ?? ?? ???"
8) Counsel for the appellant has contended that Shri Mohan Lal Jhalani, Advocate was provided as counsel by the Legal Aid Service Authority. The said counsel on 14/09/2006 had filed an application u/S.311 Cr.P.C., for re-summoning Dr.Pashupati Lal Das (PW13) and Satish Kumar (PW15), the investigation officer. In the above application filed u/S.311 Cr.P.C., no request was made to recall Gyan Singh (PW14). The said application was dismissed by the trial court on 14/09/2006 by passing the following order:-
14.09.06 ??. ??.??. ????????
???????? ????? ???? ??.??. ?? ????????
???????? ?? ???????? ????????
???????? ?? ???????? ?? ????????? ???? u/S. 311 ?CrPC ??? ?? ?????? ???? ?? ?? ?? ????? ??? ???? ???? ????, ????? ??????? ??? ??.??.??.??? ?????? ????? ?? ???? ???? ??? ?? ????? ???? ?? ??? ?? ????? ?????? ?? ???: ??? ???? ???? ?? ?????? ???? ???
?? ??.??. ?? ?? ?? ?? ????????? ?? ????? ???? ??? ???
????? ??? ????????? ???? ???? ?? ??? ??????????? ???????? ?? ?????? ???? ??? ???
???????? ?? ?????? ?? ????? ???? ?? ?? ?? ????? ??? ??????? ???? ?? ??????? ?????? ???? ?? ?????? ???? ?????? ?? ???? ?? ??? ???? ??????? ?? ????? ?? ???? ?? ??? ???????? ??? ?????? ???? ???? ??? ???? ??.??.??.??? ?? ???? ??. 13.06.06 ?? ??? ?? ??? ???? ???? ???? ?? ???? ??. 15.07.06 ?? ??? ??? ?????? ???? ???????? ?? ???????? ?? ???????? ?? ???? ???? ????? ????? ?? ?? ??? ??????? ??. 13.06.06 ??? ??. 15.07.06 ?? ?????? ?? ?? ?? ????? ???? ?? ?? ?????? ?????? ?? ?????? ???????? ???????? ??????? ??? ??? ?? ???? ???? ????? ????? ?? ?? ??? ???????? ???? ??? ????????? ???? ??? ??? ??? ???????? ??? ??????-????? ???? ?????? ???? ???? ??? ?? ????? ?? ?? ?????? ?? ???: ??? ???? ?? ???? ????? ???????? ???????? ?? ?????????? ?? ???? ?? ?????? ?? ???? ??? ?? ?? ??? ??? ??? ??? ?? ???????? ?? ?? ??? ?? ????????? ???? ???? ????? ???? ???? ???? ?? ??? ???????? ???? ???? ????? ???? ???? ??? ???? ?????? ????
???????? ?????? ??? ?????? ??? ?????? 15.9.06 ?? ??? ???"
9) Counsel for the appellant submits that on the very next day i.e. on 15/09/2006, a request was made to the trial court to adjourn the matter to enable the counsel to file revision petition. It is stated that prayer was also declined and the trial court proceeded to decide the case.
10) Shri N.S. Dhakad, learned Public Prosecutor could not justify as to why an opportunity was not granted to the counsel for the appellant to cross-examine these two witnesses.
11) Having heard learned counsel for the parties, we are of the view that it is a duty of the court to find the truth. Even if counsel for the appellant was not present, the court itself would have asked the questions to the witnesses to find their credibility and test the veracity of the witnesses. The court in a very mechanical manner closed the cross-examination. No question was asked to the witnesses by the court and their testimony was accepted as it is. We are conscious that in few cases, the counsel as a tactic abstain and seek deferment of cross-examination so that later witnesses are manipulated but in the present case, Dr.Pashupati Lal Das (PW13) and Satish Kumar (PW15) investigation officer both are official witnesses, they could not be influenced and they are material witnesses, therefore, court ought to have shown the magnanimity and compassion, by affording an opportunity to the appellant, who was defended by a counsel provided by the legal aid service authority.
12) Without commenting on the conduct of the counsel, who was not present and who had not furnished any explanation as to why he was not available in the court on the day when witnesses appeared and as to why he had not extended cross-examination, we are of the view that a prejudice indeed has been caused to the present appellant.
13) Consequently, we dispose of this appeal by issuing the following directions:-
(a) that the trial court shall call Dr.Pashupati Lal Das (PW13) and Satish Kumar (PW15) investigation officer for cross-examination and shall afford two effective opportunities to the appellant and his counsel to extend cross-examination to these two witnesses.
(b) that before the date to be fixed for cross-examination in case the appellant is not in a position to engage counsel, the court shall direct the Secretary, Rajasthan State Legal Services Authority to provide counsel to the appellant enabling him to cross-examine Dr.Pashupati Lal Das (PW13) and Satish Kumar (PW15) investigation officer. After the cross-examination of these two witnesses are conducted, accused be examined afresh u/S.313 Cr.P.C.
(c) that the trial court after cross-examination of witnesses and statement of the accused is recorded u/S.313 Cr.P.C. after hearing the arguments of the parties afresh, shall again deliver judgment.
(d) that the trial court shall do the needful within a period of three months form the date of receipt of certified copy of this order.
14) To give effect to our order, the impugned-judgment dated 19/10/2006 rendered by the court of Additional Sessions Judge (Fast Track) No.4, Bharatpur camp at Deeg in Sessions Case No.09/2006 (State Vs. Jaswant Singh @Fakru) is set-aside.
15) The appellant continuously remained behind the bars during the trial and was not granted bail by the trial court or by this Court. Therefore, we transpose the appellant to the same situation and he will remain in the custody.
Deputy Registrar (Judicial) of this Court is directed to send certified copy of this order to the trial court. We further direct the Superintendent, Central Jail Bharatpur to produce the appellant before the trial court on 27/04/2015. Copy of this order be handed over under the signatures and seal of the Court Master to Shri N.S. Dhakad, learned Public Prosecutor for onward transmission and compliance. The records be sent back to the trial court forthwith through special messenger.
(NISHA GUPTA), J. (KANWALJIT SINGH AHLUWALIA), J.
Anil/70 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Anil Goyal Sr.PA cum JW