Karnataka High Court
Avishasha K @ Avinash K vs The State Of Karnataka on 4 October, 2018
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH R
DATED THIS THE 4TH DAY OF OCTOBER 2018
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRL. P. NO. 100318/2018
BETWEEN:
1. AVINASHA K @ AVINASH K,
S/O ASHOK KUMAR K,
AGE: 28 YEARS, OCC.: SERVICE,
R/O; 5TH WARD, JANATHA COLONY,
RAMASAGARA VILLAGE, HOSAPETE, BALLARI.
2. ASHOK KUMAR @ ASHOKA KUMARA K,
S/O THIPPARONA RAO K,
AGE: 62 YEARS, OCC: TAILOR,
R/O: 5TH WARD, JANATHA COLONY,
RAMASAGARA VILLAGE, HOSAPETE, BALLARI.
3. ANIL KUMARA K S/O ASHOK KUMAR K,
AGE: 25 YEARS, OCC: SERVICE,
R/O: 5TH WARD, JANATHA COLONY,
RAMASAGARA VILLAGE, HOSAPETE, BALLARI.
4. LAKSHMI BAI @ JAYA LAKSHMI BAI,
W/O ASHOK KUMAR K, AGE: 55 YEARS,
OCC.: HOUSEWIFE, R/O: 5TH WARD,
JANATHA COLONY, RAMASAGARA VILLAGE,
HOSAPETE, BALLARI.
- PETITIONERS
(BY SRI V.M. SHEELAVANT, ADVOCATE)
AND:
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THE STATE OF KARNATAKA BY PSI,
KAMPLI POLICE STATION, BALLARI,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH AT DHARWAD.
- RESPONDENT
(BY SRI RAJA RAGHAVENDRA NAIK, GOVT. PLEADER)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO QUASH THE ORDER DATED 30.01.2018 PASSED
BY THE LEARNED III ADDL. DIST. & SESSIONS JUDGE, BALLARI
(SITTING AT HOSAPETE) IN S.C. NO. 5006/2016 INSOFAR AS
ALLOWING THE APPLICATION NO. 1 FILED U/S 311 OF CR.P.C.
PERMITTING THE PROSECUTION TO PRODUCE MICRO CHIP
AND C.D. AS AN ADDITIONAL EVIDENCE & ETC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioners-accused nos.1 to 4 in S.C. No. 5006/2016 by challenging the order passed by the trial Judge on an application filed u/S 311 of Cr.P.C. dated 30.01.2018 wherein the trial Court has permitted the prosecution to produce the additional evidence, as micro chip and CD.
2. I have heard the arguments of the learned counsel for the petitioners and the learned Govt. Pleader for the State and perused the records.
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3. Brief facts of the case are as under:
The P.S.I. of Kampli Police Station has registered a case in Crime No. 137/2015 relating to the case in S.C. No. 5006/2016 for the offences stated supra wherein the Investigating Officer has laid the charge sheet against the accused in the aforesaid crime. Subsequent to laying the charge sheet against the accused, the trial Court has framed charge against them and thereafter proceeded with the case for trial.
4. In S.C. No. 5006/2016 the prosecution in all examined 44 witnesses including the complainant who is examined as P.W.8. On 06.12.2017 the prosecution has filed an application u/S 311 of Cr.P.C. as wherein seeking production of Micro Chip and CD as additional documents/ evidence, which were in possession of the complainant and also adducing evidence alleging that the deceased has narrated the incident which are faced by her during her marital life with the husband, being arraigned as accused no.1, namely, 4 Avinash. She has narrated the incident to her father-P.W.8 while she was in VIMS Hospital, Ballari. The incident in which narrated by her was recorded/ videographed in the mobile phone by her father-P.W.8, the complainant. The petitioners being arraigned as accused in the aforesaid Sessions Case as wherein the defence counsel have filed objections to the said application filed by the prosecution for having to produce micro chip and CD as additional evidence.
5. Whereas the counsel for the petitioners herein has produced document no.1, which is the application filed by the prosecution u/S 311 of Cr.P.C. and the document no.2 is the objection filed by the defence counsel for the accused as they being the petitioners herein. Document no.3 is the copy of the order sheet maintained in the aforesaid Sessions case as wherein the trial Court has passed the impugned order dated 30.01.2018 on the application filed u/S 311 of Cr.P.C. for production of micro chip and CD as additional evidence. The accused are charge sheeted for the offences stated supra, as 5 the prosecution set up the theory that the complainant- Honnura Rao's daughter, namely, Jyoti, was given in marriage to accused No.1-Avinash on 02.05.2014. During her marriage, that her father has provided dowry in terms of cash and gold items. Subsequent to her marriage she had been to her matrimonial home to lead her marital life, wherein the accused have demanded additional dowry which is stated in the complaint and also extended life threat to her saying as to face dire consequences if they do not fulfill their demand. The same has been intimated by the said Jyoti to her father, who is the complainant-P.W.8. On 21.10.2015 that her husband-accused no.1, namely, Avinash, who had colluded with the other accused and doused kerosene on her person and set her ablaze, as a result of that, she sustained severe burn injuries and succumbed to the injuries. It is based upon his complaint, a crime came to be registered and thereafter the Investigating Officer proceeded with the case for investigation as wherein the Investigating Officer has laid the 6 charge sheet in Crime No. 137/2015 against the accused for the aforesaid offences.
6. In this petition, the learned counsel namely Sri.V.M.Sheelavant, for the petitioners has taken me through the impugned order passed by the trial Court on the application filed by the prosecution u/S 311 of Cr.P.C. for production of micro chip and CD relating to the incident narrated by the deceased Jyoti, who being the daughter of the complainant, as the accused are the cause for the death of Jyoti, who sustained burn injuries severely and while she was on treatment in VIMS Hospital, Ballari, she has narrated the incident to her father, which was videographed in his mobile phone, that the accused demanded to bring additional dowry in terms of cash as well as gold jewellery despite of it received considerably during her marriage with the accused no.1- Avinash.
7. In S.C. No. 5006/2016, the prosecution in all examined 44 witnesses in order to prove the guilt of the accused. 7 Subsequently, the prosecution has filed an application u/S 311 of Cr.P.C. for production of the micro chip and so also the CD relating to the narration of the incident by the deceased Jyoti, but the said micro chip and CD have not been produced by him even during the course of investigation as done by the I.O. and even at the time of examination for the prosecution and at the time of cross-examination of P.W.8. He did not venturing to produce the said documents, such as, micro chip and CD alleged to be narrated the incident by his daughter.
8. It is further contended that the charge sheet was laid by the I.O. against the accused, it consisting the statement of witnesses and so also consisting mahazar said to be conducted by the I.O. during the course of investigation in the presence of the panch witnesses and so also even in the presence of the complainant wherein the inquest was held over the dead body and so also recording the dying declaration said to be given by the deceased Jyoti relating to 8 the incident said to be committed by the accused and caused her death.
9. Whereas even after laying the charge sheet by the I.O. against the accused before the Committal Court and whatever the things it has left out and the same has to be produced even at the later stage as u/S 173(8) of Cr.P.C. But the said things it has not been done by the I.O., the prosecution has not produced the documents, as the micro chip and CD, which was recorded by P.W.8 as narrated by his daughter Jyoti while she was on treatment in VIMS Hospital, Ballari.
10. In the instant case as wherein the I.O. has laid the charge sheet against the accused as u/S 173 of Cr.P.C. Subsequently, that the accused are required to be facing of a trial for the aforesaid offences but the materials do not spell about anything, that the micro chip and CD which is said to be produced by the complainant as PW8. The application has been filed by the prosecution at a later stage to adduce the evidence by production of micro chip and CD. Therefore, 9 P.W.8 is requires to be called for further examination in chief for the prosecution in order to prove the guilt of the accused that the documents of micro chip and CD has not been furnished to the accused as contemplated u/S 207 of Cr.P.C. as when the case was committed to the Court of Sessions/ Special Court for trial of an offence against the accused. As this contention taken by the learned counsel for the appellant during the course of his arguments relating to production of the said documents at a later stage which is not proper on the part of the prosecution to establish their case, though the charge sheet has already been laid and the case has been proceeded by the prosecution to prove the guilt of the accused.
11. It is further contended that the trial Court has failed to appreciate the tenor of Sec. 311 of Cr.P.C. and so also provisions of Sec. 65-B of the Indian Evidence Act by the prosecution for having to file an application for production of micro chip and CD, it will be at a later stage of the 10 prosecution in order to prove the guilt of the accused. Even though it has to be produced at a later stage, the procedure as u/S 173(8) of Cr.P.C. shall be followed. It is relevant to refer Sec. 173(8) of Cr.P.C. The said provision reads as under:
"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a period under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."
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12. In the present case, the I.O. did not seek any permission to produce the said document as contemplated u/S 173(8) of Cr.P.C. at the time of laying the charge sheet as 11 wherein the accused have been facing of the trial for the heinous offences punishable u/S 498-A, 302, 304-B, 506, 109 r/w Sec. 34 of IPC besides Sec. 3 and 4 of D.P. Act. On all these grounds as urged by the learned counsel for the petitioners, seeking to allow the petition by setting aside the order passed by the trial Court in S.C. No. 5006/2016 on an application filed u/S 311 of Cr.P.C.
13. In support of his contention the learned counsel has placed reliance on the decision rendered by the Hon'ble Supreme Court reported in (2017) 9 SCC 340 (Ratanlal Vs. Prahlad Jat and Others) wherein it is held that:
"the discretionary power of Court under, to summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined, the relevant consideration while exercising of that power - delayed application for recall of a witness.
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14. In the instant case, P.W.8 was examined for the prosecution and they did not produce any micro chip and CD as additional documentary evidence to prove the guilt of the accused. In the aforesaid reliance at paragraph no.9 it is held as under:
"However, the criminal trial is conducted largely by following the procedure laid down in Cr.P.C. Locus standi of the complaint is a concept foreign to criminal jurisprudence. Anyone can set the criminal law in motion except where the statute enacting or creating an offence indicates to the contrary. This general principal is founded on a policy that an offence, that is an act or omission made punishable b any law for the time being in force, is not merely an offence committed in relation to the person who suffers harm but is also an offence against the society.
The delay in filing the application is one of the important factors which has to be explained in the application."
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15. In this judgment rendered by the apex Court in Umar Mohammad V. State of Rajasthan at (SCC P. 719 paragraph no. 38), it is also stated in the above judgment for consideration of the grounds urged in the matter as where the application u/S 311 of Cr.P.C. has been filed. In that case at paragraph no. 22 it is held as under:
"P.W.4 and P.W.5 were examined between 29.11.2010 and 11.03.2011. That these witnesses were examined at length during the said period. During the police investigation and in their evidence, they have supported the prosecution story. The Sessions Judge has recorded a finding that they were not under any pressure while recording their evidence. After a passage of 14 months, they have filed the application for their re- examination on the ground that the statements made by them earlier were under pressure. They have not assigned any reasons for the delay in making application. It is obvious that they had been won over. We do not find any reasons to allow such an application. The Sessions Judge, therefore, was justified in rejecting the application. 14 In our view, the High Court was not right in setting aside the said order."
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16. P.W.8 said to be examined for the prosecution. His daughter Jyoti is the victim. On the fateful day, that the accused doused kerosene over her person and set her ablaze. As a result of that, she sustained severe burn injuries and succumbed to the injuries while she was on treatment in VIMS Hospital, Ballari. Subsequent to laying charge sheet in order to establish the guilt of the accused, in all 44 witnesses have been examined. But the prosecution was venturing to make an application u/S 311 of Cr.P.C. for production of that micro chip and CD in this case, it is as a documentary evidence. Even though it was in his possession and also be narrated the incident by deceased Jyoti to her father P.W.8 said to be examined, but it was only an after thought to produce the said documents.
17. On contraverted to the arguments advanced by the learned counsel for the petitioners as wherein, the learned 15 Govt. Pleader for the State who has taken me through the scope and object of Sec. 311 of Cr.P.C. and contended that, even at any stage of the proceedings, in a trial, that application has to be filed by the prosecution for production of documents in order to establish the guilt of the accused. But, in the present case, the prosecution has filed an application u/S 311 of Cr.P.C. in order to produce the micro chip and CD as wherein the deceased Jyoti who narrated the incident before her father-P.W.8 who is none other than the father of the deceased Jyoti who is intended to produce the micro chip and CD to prove their case. In the event, the opportunity shall be given to the accused to proceed with the case for cross-examination of a particular witness said to be examined for the prosecution, such as P.W.8. On these grounds urged by the learned Govt. Pleader for the State and he supported the impugned order passed by the trial Court to permit to production of said document. Therefore, in this petition it does not arise for call for any interference as there 16 are no infirmities. On all these grounds as urged and seeking for dismissal of this petition as devoid of merits.
18. Having regard to the arguments advanced by them it is relevant to state that subsequent to filing of complaint the crime came to be registered and proceed for investigation by the I.O. to record the statement of witnesses and conduct the seizure mahazar for having seized the material which are requires to be laying the charge sheet against the accused as u/S 173 of Cr.P.C.
19. Whereas Sec. 173(8) of Cr.P.C. even after laying the charge sheet against the accused within the prescribed period for having that there shall be of permission in the column of the charge sheet that to produce additional charge sheet with the material documents it needs to be produced on a later stage. But, in the present case the same has not been done by the I.O. but after examination in all 44 witnesses, on information given by P.W.8, being the complainant to produce the micro chip and CD by making an application u/S 311 of 17 Cr.P.C. by the prosecution along with his affidavit said to be filed by him.
20. It is relevant to state the scope of Sec. 154 of Cr.P.C. is that, soon after receipt of the complaint, the concerned SHO shall record the FIR and to proceed with the case for investigation. As u/S 161 of Cr.P.C. that the IO during the course of investigation he has to record the statement of witnesses and so also conduct mahazar in the presence of panch witnesses for having seized the materials and so also to held inquest over the dead body. But during the course of investigation done by the I.O., the P.W.8 did not produce the micro chip and CD even though they are in his possession. When the charge sheet has been laid as u/S 173 of Cr.P.C., copy of the charge sheet shall be furnished to the accused as u/S 207 of Cr.P.C. but the micro chip and CD it has not been produced by the complainant during the course of the investigation even at the stage for examination in chief and cross-examination as P.W.8, but in all 44 witnesses have 18 been examined and thereafter he had given an information to the prosecution and in turn the prosecution has made an application u/S 311 of Cr.P.C. for seeking permission to production of the micro chip and CD said to be establish guilt of the accused and it is nothing but as after thought only to having animosity against the accused.
21. Whereas the object of Sec. 173 of Cr.P.C. is that after completion of the investigation, the I.O. has laid the charge sheet against the accused it consisting the statement of witnesses and mahazar said to be conducted by the I.O. at this stage also the complainant did not produce the said document.
22. Whereas the learned Govt. Pleader for the State who has controverted Sec. 65-B of the Indian Evidence Act to produce certificate relating to electronic document it is not mandatory, even though it is not mandatory but at the time of laying the charge sheet as contemplated u/S 173 of Cr.P.C., the copy of the documents shall be furnished at the time of committing 19 the case for trial as u/S 207 of Cr.P.C. is a mandatory. Sec. 207 of Cr.P.C. reads thus:
207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-
(i) the police report;
(ii) the first information report recorded under section 154;
(iii) the statements recorded under sub- section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub- section (6) of section 173;
(iv) the confessions and statements, if any, recorded under section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub- section (5) of section 173:
Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of 20 such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:
Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.
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However, there is no bar even to produce electronic documents during the course of investigation done by the IO to laying the charge sheet against the accused. But, in the present case as wherein PW8 had given information to the prosecution, after subjected to examination of 44 witnesses for production of those documents by filing an application, it creates some doubts, whether that micro chip and CD was in possession and the involvement said to be narrated by his daughter when she was on treatment in hospital by sustaining severe burn injuries.
23. In this case, the later stage of the prosecution case even after examination of in all 44 witnesses the application u/S 311 of Cr.P.C. has been filed by the prosecution only an 21 information given by P.W.8 being the author of the complainant as well as father of the deceased but the impugned order passed by the trial Court by giving permission to the prosecution to produce the said micro chip and CD found to be not justifiable, as wherein P.W.8 is required for examination in further and to marking of those documents of micro chip and CD. However, the prosecution has got information from P.W.8 relating to the production of the micro chip and CD even at a later stage to prove the guilt of the accused as u/S 311 of Cr.P.C. to produce those documents in order to got it marked for exhibits and even to establish the narration of an incident by the deceased Jyoti to her father-P.W.8, who has already been examined for the prosecution insofar as the allegations made in the complaint as filed by him. Therefore, it is not proper on the part of the prosecution to produce those documents, such as, micro chip and CD even at a later stage of the prosecution as whimsical and fancical in order to establish guilt of the accused, as wherein the accused have been facing of a trial for the 22 heinous offence which is reflected in the charge sheet and also charge has already been framed by the trial Court and proceeded with the case for facing of a trial. This aspect is requires to be consideration by the trial Court even for entertaining the application filed by the prosecution u/S 311 of Cr.P.C. even at the later stage. Merely because the power is vested with the trial Court, but the same has been to exercise judicially and judiciously in order to consideration of the said application for the prosecution and even for defence also.
In the instant case, the application has been filed by the prosecution along with affidavit of P.W.8 is not proper, at the later stage and permit the prosecution to produce after examination in all 44 witnesses to prove the guilt of the accused u/S 311 of Cr.P.C. for later production of micro chip and CD. For the aforesaid reasons, I am of the considered opinion that there are substances in the contention of the learned counsel for the petitioners for seeking allowing the 23 petition by setting aside the order passed by the trial Court in S.C. No. 5006/2016 dated 30.01.2018 allowing the application to produce micro chip and CD. Consequently, the impugned order is set aside.
Consequent upon the setting aside the impugned order, the trial Court is directed to proceed with the case from the stage where it was halted, in accordance with law.
SD/-
JUDGE bvv