Karnataka High Court
State By Psi, Malpe Police Station, ... vs Sheku Alias Shekhara Poojary And Ors. on 20 February, 2002
Equivalent citations: 2002CRILJ2148, 2002(5)KARLJ25, 2002 CRI. L. J. 2148, 2002 AIR - KANT. H. C. R. 1278, (2003) 1 CURLJ(CCR) 405, (2003) 2 EFR 432, (2003) 1 FAC 176, 2003 FAJ 483, (2003) 2 RECCRIR 582, (2002) 5 KANT LJ 25, (2003) 1 RECCRIR 365, (2003) 1 ALLCRILR 654, (2003) 2 ALLCRILR 654, 2003 CHANDLR(CIV&CRI) 502
Author: N.K. Patil
Bench: N.K. Patil
JUDGMENT
1. We have heard the learned Additional State Public Prosecutor and the learned Advocate E.R. Diwakar who was appointed as Arnicas Curiae by the Court on behalf of respondents-accused. Despite service of notice from this Court the accused have not only remained absent but they were also unrepresented. After hearing the appellant's learned Counsel we were of the view that the appeal will have to be allowed and consequently appointed an Amicus Curiae Counsel and adjourned the hearing to enable the respondents' learned Counsel to get ready with the case.
2. We have heard the learned Counsels on both sides. The appellant's learned Counsel has pointed out to us that P.Ws. 1 and 2 both of whom were injured and their friends have supported their versions and no independent witnesses have been examined. His submission is that in a case of the present type where the evidence of the injured persons is perfectly good and acceptable and where the medical evidence corroborates their testimony, that even if the independent witnesses are not available that a prosecution is perfectly sustainable. As against this position, respondents' learned Counsel submits that admittedly there was some background of a dispute or hostility between the two groups and that consequently it would be unsafe to rely on the evidence of the interested: persons and that the learned Trial Magistrate was right in having insisted on independent corroboration.
3. It is necessary for us to observe here that in case after case, where there is perfectly good evidence from the injured person and where there is no requirement of law that third parties or independent witnesses should be available, that for some strange reason, the Trial Judges or Magistrates have been acquitting the accused resulting in total miscarriage of justice. The reasons set-out in the present judgment for the acquittal of the accused are totally unsustainable and, it would be necessary that the Trial Courts particularly the Judicial Officer who has delivered this judgment should ensure that orders of this type should not be passed in future. It is such orders that are giving rise to the unnecessary spate of appeals against the acquittals which would not have been necessary had the cases been properly decided in the first instance.
4. While the learned Additional State Public Prosecutor submitted that the non-examination of the doctor has been wrongly treated as fatal to the prosecution evidence by the Trial Court and that it is perfectly permissible to produce the wound certificates through the Investigating Officer, while we do concede that the learned Counsel is technically correct, we need to deprecate any such short cuts. It is true that under the provisions of the Indian Evidence Act, the wound certificates, which are public documents, can be tendered in evidence by the Investigating Officer, but the Trial Courts should never overlook the fact that there are various special features in relation to medical evidence about which only the doctor can depose. We have come across a host of cases in which for no valid reason the doctor has not been examined. In this case, learned Additional State Public Prosecutor states that the record indicates that the Court was informed that the whereabouts of the doctor were not known. Doctors are not criminals and there is no reason why the doctor should abscond, but more importantly, if the prosecutors obviously hands in glove with the police and the defence make such statements to the Court, it is for the Presiding Judge to ensure that such mischief is put down with a strong hand and that necessary steps are taken to produce the doctor. If the doctor has in fact left or died or is really not available any other medical officer from the institution can give evidence on the basis of the records and there is absolutely no excuse for not producing the doctor, which is very important from the point of view of the prosecution in order to establish the exact nature and gravity of the injuries, but it is even more important from the angle of the defence because the entries in the records and the opinion of the doctors as reflected in the certificates need not necessarily be correct. It is certainly open to the defence to question these and to dispute them and this cannot be done unless the doctor is produced as a witness. In the present instance, strangely enough, the learned Magistrate has not bothered to ensure the presence of the doctor and thereafter used this very circumstance to acquit the accused, thereby giving them an undue advantage. This is something we do not approve of.
5. On the question as to whether in the absence of the doctor in the present case a conviction is impossible, we need to record that since there is sufficient evidence on record to establish the charges and more importantly since the defence has not disputed the wound certificates or insisted upon the presence of the doctor, that the non-examination cannot be treated as a fatal infirmity to the prosecution. On the state of the present record, the evidence clearly makes out that accused 1 to 6 in furtherance of their common intention inflicted the injuries on P.Ws. 1 and 2. They are therefore liable to be convicted of the offences punishable under Sections 325 and 323 read with Section 34 of the IPC.
6. The order of acquittal passed by the Trial Court is not disturbed as far as the remaining sections are concerned. However, accused 1 to 6 to stand convicted of the offences punishable under Sections 325 and 323 read with Section 34 of the IPC and it is directed that they shall pay a fine quantified at Rs. 2,000/- each. No in default sentence is awarded. The Trial Court shall recover the fine amount from the accused, if they do not deposit the same in the Trial Court within the limit of 12 weeks from today. On recovery of the said amount the Trial Court to issue notice to P.Ws. 1 and 2 and pay over an amount of Rs. 10,000/- and 2,000/- respectively to P.Ws. 1 and 2 as compensation.
7. The appeal succeeds to this extent and stands disposed off.
8. The office to pay to the learned Counsel who has appeared as Amicus Curiae a sum of Rs. 1,000/- as professional charges.
9. Copy of this order to be communicated to the Judicial Officer concerned.