STATE Vs. SHAKUNABI

JUDGEMENT

(1.) WE have heard the learned Govt Advocate on merits on the main appeal as also on I A I The reason for this is because before issuing notice to the accused on I A, this court has got to be reasonably satisfied that a sufficiently good case does exist on merits as otherwise issuing notice to the respondent on the application for condonation of delay, and the appeal becomes nothing short of sheer harassment.

(2.) THE principal submission canvassed by the learned Counsel in support of the appeal is that it is true that the prosecution alleges that it was the original accused No. 1 who is alleged to have inflicted a stab injury with a spear as a result of which the deceased died All the persons involved viz, the main accused, the deceased and the present accused No. 2 who is the mother, belong to the same Nomadic tribe and, they were all earning their livelihood by begging A-1 could not be traced and the trial against him has been separated As far as A-2 is concerned, the submission canvassed before us is that if the evidence indicates that A-2 had instigated and abetted A-1, that she had produced the weapon and handed it over to him and that she was also responsible for concealing the weapon, that this material is sufficient to sustain a conviction against A-2 independent of A-1.

(3.) WE have very carefully re-evaluated the caliber of the evidence and we are in total agreement with the conclusion recorded by the learned Trial Judge to the effect that the record cannot sustain a conviction Two factors have gone heavily against the prosecution, the first is that there is a long delay in lodging the complaint and the second is the total non-mention of any over act or for that matter even the name of accused No. 2 who is the present accused. In our considered view, on this state of the record, the Law Department ought not to have passed any resolution directing the learned High Court Govt Advocate to file an appeal as there is really zero material on the basis of which the order of acquittal can be disturbed The learned Govt Advocate has done his very best within the framework of the facts and the law but we have brought it to his notice one other factor that had there been any application of mind on the part of the Law Department, they would certainly have not directed the filing of an appeal. The fact is that admittedly A-2 belonged to a Nomadic tribe, she is an itinerant figure who was moving from place to place, she has no income, no property, no fixed place of residence and no kith and kin, that the court is even aware of Assuming for arguments sake that there was some slender material to justify reconsideration, it is necessary in this class of cases for the Law Department to realise that it is a totally useless and infructuous exercise for all the labour of the learned Govt advocate and after spending judicial time on consideration of the appeal, if it becomes impossible to trace the respondent accused and serve the notice. It is therefore very necessary that the Department does not only go by a myopic view of the second on legal technicalities, but the important question such as whether it would be possible to trace out and serve respondent-accused and whether any useful purpose would be served by filing an appeal are all fundamental angles which are totally overlooked. In our considered view, there has been total non-application of mind while directing the filing of an appeal. Despite the submission canvassed on behalf of the appellant, no ground is made out for interference. The appeal fails on merits and stands dismissed Having regard to the grounds set out, I A I is allowed, delay is condoned and HCGP to forward copy of this order to the Law Secy. , Govt of Karnataka.