BERLEY Vs. STATE

JUDGEMENT

(1.) "there is a humanitarian consideration in this case and it is for you to listen and understand. " The attitude of the learned judge is that the court can dispense justice even without the assistance of the defence. In the above state of affairs the petitioner apprehends that he will never get justice at the hands of that court.

(2.) SINCE serious allegations have been made in the petition, its copy was sent to the learned judge and his remarks were called. The learned judge has given the following details. The case came up for trial on 17-3-86. On that day the first accused alone was present. Counsel for the third accused filed an application for adjournment stating that A3 is laid up (A2 is no more ). The case was then adjourned to 18-3-86 and C. Ws 1 to 3, who were summoned for the day were bound over to the 18th. On 18th the examination of C. W. 1 as P. W. 1 alone was completed and C. W. 2 was partly examined as P. W. 2. On that day C. Ws 1 to 7 were present in court. On account of the dearth of time deposition of P. W. 1 was not read over in open court. On 19-3-86 P. W. 2 and C. Ws 3 to 12 were present for examination. The first accused filed Crl. M. C. 206/86 for adjournment alleging that he will not get proper and legal trial from the court. Therefore the trial was adjourned to 1-4-86 to enable the accused to move the appropriate forum. P. W. 2 and other witnesses were bound over for 1-4-86. On 1-4-86 the first accused was absent. His counsel applied for exemption on the ground of illness. The case was adjourned to 2-4-86. On that day the learned counsel appearing for the accused filed an application for adjournment stating that he has moved the High Court for transfer of the case. Thereupon the witnesses were discharged and the case was adjourned to 27-5-86 for receipt of stay order it any from the High Court. The prosecutor was not permitted to put any leading questions to P. W. 1 to the detriment of the accused. The allegation that suggestive questions put by the prosecutor were not recorded as questions is false. He had expressed that it would be practically impossible to record in writing the position of the hand of the deceased when the injury was inflicted, as shown by P. W. 1, without taking a photograph or drawing a diagram. The answer given by the witness was recorded in the manner which is capable of recording. The deposition of P. W. 1 was not read over for want of lime. The deposition of P. W. 1 was truly and correctly recorded in open court. After satisfying the correctness of the deposition P. W. 1 has signed the same. To save time the court proceeded to record the deposition of p. W. 2. P. W. 2 is an unmarried girl of 23, who according to the prosecution is an eye witness to the incident where her father, mother and brother-in-law were stabbed to death. When the details of the incident were brought out in the chief examination P. W. 2 started weeping. This was disliked by counsel. Then the counsel was told "you should give some concession to this witness taking into consideration the humanitarian aspect involved. " He has never stated "it is for you to listen and understand" as alleged in the petition. The witness was asked to stop weeping and to answer the questions put by the prosecutor loudly. It is not correct to say that ignoring the request made by the counsel for the defence the court was giving encouragement to P. W. 2 to continue her statements in a most low tone. SINCE the court room is very small and the witness box was very near to the dock of the accused and to the seat of counsel any reasonable person could easily follow the answers given by P. W. 2. There was no occasion for creating any apprehension or anxiety in the mind of the first accused that he will not get proper justice at the hands of this court. The last paragraph of the remarks reads as follows: "though the allegations in the petition Crl. M. C. 313/86 are false, baseless and unfounded, calculated with some ulterior motive of which the counsel for the petitioner alone knows and such dubious methods of the counsels appearing for the accused persons in murder cases to make cheap popularity among the litigant public that they are capable of even transferring a murder case pending in one court to another court of their choice on flimsy grounds should be discouraged by the Hon'ble High Court by all means, in view of the fact I may find it extremely difficult to proceed with the trial of this case in case the present counsel of the 1st accused, namely Shri. T. V. Prabhakaran is holding the brief, I have no objection in transferring the case to any other court of competent jurisdiction which the Hon'ble High Court so pleases. "

(3.) THE allegations made by the petitioner that suggestive questions put by the prosecutor were not recorded as questions and that the court eliciting answers favourable to the prosecution are emphatically denied by the learned judge in the remarks sent up by him. I do not find any ground to doubt the correctness of these statements. In a Sessions trial, the trial judge is not to play the part of an umpire. He must take active part in the proceedings before him. In discharging such a duty if he puts certain questions to the witness it can never be said that he is eliciting answers to help the prosecution.