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Madhya Pradesh High Court

The State Of M.P. vs Pappoo @ Saleem & Ors on 18 May, 2010

Author: U. C. Maheshwari

Bench: U. C. Maheshwari

                                            1                           CrA.507/94

                HIGH COURT OF M. P. JUDICATURE AT JABALPUR
                            CRIMINAL APPEAL NO.507/1994.
                                 State of Madhya Pradesh
                                          Versus.
                                Pappoo @ Saleem and others

        For the appellant :        Shri B. P. Pandey, Dy. Govt. Ad vocate.
                                   None for respondent.

                                        JUDGMENT

(18 .05.2010) Per U. C. Maheshwari J.

1. This appeal is directed on behalf of the appellant/ State under Section 378 of Cr. P. C. being aggrieved by the judgment dated 1.3.1994 passed by the Chief Judicial Magistrate Balaghat in Criminal Case No.790/87 acquitting the respondents from the charge punishable under Section 452, 327, 506-B, 325/34 and 323/34 of IPC.

2. The facts giving rise to this appeal in short are that on 17.3.1987 at about 4.00 pm one Baldeo Kumar accompanied with Shiv Charan and Yogendra was taking tea in his office at the same time the respondents including the deceased respondent No.2 Deva under the influence of intoxicated substance entered in his office and demanded the donation of Holi Festival. On asking by Baldeo Kumar that such festival is over and he has already given the donation earlier in that regard, on which the respondents and deceased respondent Deva after abusing with filthy language to Baldeo Kumar and other persons named above beaten them and also gave threat to kill them. In such incident Baldeo has sustained some grievous injuries. The matter was reported to the police on which an offence was registered against the respondents under Section 452, 294, 323, 506-B and 34 of IPC. The injured persons were taken to hospital where their MLC reports were prepared and under the advice of doctor x-ray of injured Baldeo and Yogendra was carried out in which the crack (fracture) on base of distilphalonx of left thumb of Baldeo was revealed. On completion of the investigation the respondents and deceased accused were charge sheeted for the offence under Section 452, 327 and 506-B of IPC.

3. After committing the case to the Sessions Court initially the charge of Section 452, 327 and 506-B of IPC were framed against the respondents. They abjured the guilt, on which the trial was held, in which as many as six witnesses were examined by the prosecution to prove its case while one Bhola Singh was examined as court witness. Thereafter accused statement was recorded on 5.5.1989. Subsequent to it on 19.3.1989 one witness was examined by the respondents in their defence. After closing the defence vide order dated 19.6.1989, the case was posted for 23.6.1989 for final argument. The same was adjourned for 26.6.1989 and on 26.6.1989 final arguments were heard and case was fixed for 4.7.1989 to deliver the judgment. On such date instead to deliver the judgment by mentioning the reasons additional charges for the offence under Section 325/34 and 323/34 were also framed against the respondents. They again abjured the guilt with respect of such charges, on which at the request of the defence all the examined prosecution witnesses were directed to be recalled for further cross-examination. Subsequently on 12.7.1990 with respect of additional charge the defence counsel prayed to recall only three witnesses namely Yogendra Agrawal (P.W.1), Baldeo (P.W.6) and Shivcharan ((P.W.6) for their further cross-examination. In compliance of such order on the same day the present witness Baldeo was further cross-examined by the defence and the case was adjourned for cross- examination of said Yogendra and Shivcharan. For one reason or another inspite extending various opportunities between 31.7.90 to 22.1.1994 the prosecution could not produce such witnesses for further cross-examination and case was posted for defence evidence and ultimately on 1.3.1994 the final arguments were heard and considering the circumstance that respondents could not get the opportunity of complete cross-examination of the prosecution witnesses namely Yogendra and Shiv Charan with respect of the additional/ amended charges held that there statement being incomplete could not be taken into consideration to draw any inference against the respondents and in the lack of any independent evidence in support of the victim the respondents were acquitted from all alleged charges, on which the State has come forward with this appeal challenging such acquittal of the respondents.

4. Shri B. P. Pandey, learned Dy. Government Advocate after taking me through evidence led by the prosecution said that at the initial stage the 3 CrA.507/94 charge of section 452, 327 and 506-B of IPC were framed against the respondents for which entire trial was held and at the stage of delivery of judgment additional charges of Section 325/34 and 323/34 of IPC were framed and subsequent to it only with respect of such additional charges the alleged witnesses were recalled for further cross-examination. Out of them Baldeo was cross-examined by defence and to secure the presence of above mentioned other witnesses made best efforts but could not secure there presence for further cross-examination. In such premises firstly he said that even after framing the additional charges of aforesaid section the additional evidence was not necessary and case ought to have been decided by the trial Court on the basis of available evidence. In any case if Yogendar and Shivcharan could not be further cross-examined by the defence with respect of additional charges even then their testimony could have been considered by the trial court on merits to decide the case with respect of earlier framed charges of Section 452, 327 and 506-B of IPC. Only on account of non- production of some witnesses for further cross-examination by ignoring the evidence adduced by the prosecution with respect of earlier charges the respondents could not be acquitted by the trial court and prayed for setting aside the judgment of the trial court with a prayer to convict the respondents by allowing this appeal.

5. After examining the record of the trial court and perusing the impugned judgment, I am of the considered view that trial court has not committed any error in acquitting the respondents from the alleged charges.

6. True, it is that at the initial stage the charges of section 452, 327 and 506-B of IPC were framed against the respondents and after holding the trial the case was fixed for delivery of judgment on 4.7.1989 and on on such date instead to deliver the judgment the trial Court has framed additional charge of Section 325/34 and 323/34 of IPC against the respondents. So for additional framed charges of Section 323/34 of IPC is concerned, I am of the view that such charge was covered under Section 327 of IPC and for that purpose no further cross-examination of any examined witnesses was required because of on appreciation of evidence instead the offence of Section 327 of IPC the offence of Section 323 of IPC is made made out then by virtue of Section 222 of CrPC the trial court could have punished the respondents under Section 4 CrA.507/94 323 of IPC, as the same is a minor offence of section 327 of IPC. So far the charge under Section 325/34 of IPC is concerned the same was not covered by any of the existing charge framed earlier. Therefore, further cross- examination of examined prosecution witnesses subject to request of the respondents was necessary and in that regard the trial court has not committed any error in extending such liberty to the defence and directing the prosecution to produce the above mentioned three witnesses namely, Yogendar, Baldeo and Shivcharan for their further cross-examination. It is apparent on record as stated above that inspite extending various opportunities except Baldeo Prasad no other examined witnesses namely Yogendar and Shivcharan were produced for their further cross-examination, on which the evidence of prosecution was closed. As per settled proposition of law the deposition of witnesses could not be taken into consideration if the same is not complete in accordance with the provision of Section 137 and 138 of Evidence Act. The statement of witness could be treated to be completed only after his cross-examination and if he is re-examined by the prosecution then after recross-examination. In such premises the right of the other party to cross-examine the witnesses is not only a formality but the same is a substantive right of such party to prove his case and defence. Such view is fully fortified by the decision of Oudh High Court in the matter of Ram Kumar Vs. Emperor reported in AIR 1937 Oudh 168, in which it was held as under :

"The testimony of a witness is not legal evidence unless it is subjected to cross-examination; and where no opportunity has been given to the accused's counsel to test the veracity of the principal prosecution witnesses, or where owing to the refractory attitude of the witness the Court is constrained to terminate all of a sudden and prematurely the cross-examination of the witness, the evidence of such a witness is not legal testimony and cannot be the basis of a judicial pronouncement."

7. The aforesaid case law is also taken into consideration by this Court in the matter of Lallu Vs. State of M. P. reported in 2003 (1) MPLJ 606.

8. In view of aforesaid legal position the depositions of Yogendar and Shivcharan could not be said to be complete statement. In such premises, the evidence of such witnesses could not be taken into consideration to draw any inference against the respondents/ accused.

9. At this stage I would like to mention here that after framing the additional charges the accused like respondents could not be deprived from recross-examination of the earlier examined prosecution witnesses. On extending such opportunity to the accused like respondent then they had a unfettered right to cross- examine such witnesses in the light of entire scenario of the case and with all available defences. This possibility could not be ruled out that on recross-examination of such witnesses the defence might have proved their other available defence also but on account of non production of such witnesses the respondents have been deprived for the same. In such premises it is held that the trial court has not committed any error in excluding the statement of Yogendra and Shivcharan from consideration.

10. After excluding the depositions of above mentioned witnesses Yogendra and Shivcharan only the testimony of Baldeo uncorroborated from any independent evidence remains on record. According to the deposition of Baldeo he had some enmity with the respondents, thus unless his testimony is supported by any independent source of evidence his sole testimony is not sufficient to convict the respondents My. such view is fully supported by the decision of the Apex Court in the matter of Bir Singh and others, v. The State of U.P., reported in AIR 1978 SC 59, in which it is held as under :

"9. . . . . . . . . . . . . . . . . . . . . . It is true that it was not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. This rule however does not apply where the evidence of the eye-witnesses suffers from various infirmities and could be relied upon only if properly corroborated. In the instant case all the eye-witnesses had serious animus against the accused and they were interested in implicating the accused. The substitution of Ram Dularey Singh in the general diary was a suspicious circumstance. The fact that the police was not able to recover any weapon or to explain how the appellants got hold of the guns was yet another circumstances that required a reasonable explanation from the prosecution. According to the finding of the learned Sessions Judge even the F.I.R. was ante- timed and although the High Court has not accepted this finding we feel, that the High Court on this aspect has entered into the domain of speculation. In view of these special circumstances it was incumbent on the prosecution to examine the two witnesses at least to corroborate the evidence and if they were not examined the Sessions Judge was justified in drawing an adverse inference against the prosecution. At any rate it cannot be said that if under these circumstances the Sessions Judge was not prepared to accept the evidence of these witnesses his judgment was wrong or 6 CrA.507/94 unreasonable. It may be that the High Court could have taken a different view but that at by itself as held by this court is not a sufficient ground for reversing an order of acquittal.

11. In view of the aforesaid, in the lack of any independent evidence in support of the complainant's deposition mere on his deposition the respondents could not be convicted in the case.

12. Besides the above, it is also settled proposition of law that on appreciation of evidence if two views are possible then out of them favourable to the accused should be adopted and if such view has already been adopted by the trial Court then at the appellate stage by re-appreciation of evidence the other view for holding the conviction against the respondents by setting aside their acquittal could not be adopted. My such view is based on a decision of the Apex Court in the matter of "Harchand Singh v. State of Haryana" reported in AIR 1974 S C 344. In such premises also the findings of the impugned judgment does not require any interference at this stage.

13. In such premises, I have not found any perversity, infirmity or illegality in the impugned judgment of acquittal of the respondents. Consequently, this appeal being devoid of any merits is hereby dismissed.

(U. C. Maheshwari) Judge K