STATE OF KARNATAKA Vs. HOSAKERI NINGAPPA

JUDGEMENT

(1.) THE Division Bench has referred the following questions for consideration by Larger Bench: -

(2.) BRIEF facts leading to this reference are as under: The case and counter case i.e., Sessions Case No.1/1995 and Sessions Case No. 11/1995, arose out of the same incident that occurred at 2.00 P.M. on 31.3.1994 in front of Sfeelamma Temple, situated at Hippatheri Magani, Hospet Taluk, Bellary District. Though the aforementioned two sessions cases were the case and the counter case (or cross cases), they were not tried simultaneously and the judgments were not pronounced one after the other. Sessions Case No.11/1995 was decided on 3.10.2003 by acquitting the accused therein. Whereas, Sessions Case No. 1/1995 was decided on 10.2.2005 and the accused therein are also acquitted. The judgment and order of acquittal passed in Sessions Case No.11/1995 has attained finality, inasmuch as, no appeal is filed questioning the acquittal of the accused. However, Criminal Appeal No.971/2005 came to be filed by the State against the judgment and order of acquittal dated 10.2.2005 passed in Sessions Case No. 1/1995. 2A. During the course of hearing of Criminal Appeal No.971/2005, it was brought to the notice of the Division Bench that the Sessions Case No. 1/1995 and Sessions Case No. 11/1995 were not tried simultaneously as per the dictum laid down by the Supreme Court in the case of NATHILAL vs. STATE OF U.P. and the judgment in the case of SUDHIR AND OTHERS vs. STATE OF M.P. AND STATE OF M.P. vs. LAVKUSH AND OTHERS. Various other judgments, including the judgment of the Division Bench of this Court in the case of ABDUL MAJID SAB AND OTHERS vs. STATE OF KARNATAKA, were brought to the notice of the Court in Crl.A.No.971/2005. 2B. Since the judgment of this Court in the case of ABDUL MAJID SAB (cited supra) contains certain observations contrary to the judgments of the Supreme Court in the case of NATHI LAL AND SUDHIR (cited supra), the Division Bench framed the aforementioned points and referred the said points for decision by the Larger Bench.

(3.) CASE and counter case (cross cases) are, for all purposes different or conflicting versions of one incident. Reading of the aforementioned judgments makes clear that, in order to avert the danger of an accused being convicted before his whole case is before the Court and in order to deter conflicting judgments being delivered upon similar facts, the consistent and salubrious practice adopted by the Courts in India right from 1929 is that the cross cases shall be tried simultaneously by the same Judge. After recording evidence and after hearing the arguments, the Judgment should be reserved in one case and thereafter the evidence should be recorded and the arguments shall be heard in another case. Arguments in both the cases shall be heard by the same Judge. The judgments should be pronounced by the same Judge one after another. It is also settled position in law as laid down by the Supreme Court in the aforementioned judgments that in deciding the case and the counter case, the Trial Judge can only rely on the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into, nor can the Judge be influenced by the arguments in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence and the arguments in the cross case.