STATE OF GUJARAT Vs. SHAILESH JAVERCHAND MALDE MAHAJAN

JUDGEMENT

(1.) 0 Feeling aggrieved and dissatisfied with the impugned judgment and order of acquittal passed by the learned Additional Sessions Judge (Fast Track Court No. 3), Jamnagar (hereinafter referred to as "the trial Court") dated 29/12/2005 in Sessions Case No. 103/2005 by which the learned trial Court has acquitted the respondent-original accused for the offences punishable under Sections 376 and 506(2) of the Indian Penal Code ('IPC' for short), the State has preferred the present Criminal Appeal under Section 378 of the Code of Criminal Procedure.

(7.) We are at pain to observe that neither the learned Trial Judge nor the learned APP endeavored to find out the truth by probing further the case. Instead, as soon as the witnesses, who were eye witnesses, turned hostile, the Trial Court as well as the learned APP shut the doors towards their pious and prime duty to search for the truth and the trial was closed in extreme hurry. We find that the Investigating Officer, who is named in the charge sheet, could not be examined by the learned APP nor such vigilance could be shown by the Trial Court to reach at the truth. It is not the law that when eye witness turns hostile, the courts should abandon the search for the truth and learned APP should become oblivious to put forward the whole prosecution case and instead of adducing further evidence for search of truth, simply giving purshis in the case to lock the whole case in a cup board so as to ignore completely the heinous crime like murder committed under the nose of the society. The Investigating Officer could have been examined to throw light on the circumstances of the case and could have proved the case beyond reasonable doubt despite eye witnesses turned hostile. Necessary it is to mention that the Investigating Officer draw panchnamas by which iron bar seized from the house of the accused, contained bloodstains, and according to Forensic Science Laboratory, those bloodstains contained the blood group of the deceased. This is not the end but shirt and pant worn by the accused when he was arrested and seized by the Investigating Officer through a panchnama, contained bloodstains, which according to Forensic Science Laboratory report, contained the blood group of the deceased. Learned Trial Judge and prosecuting agency, however, did not bring this evidence on record and adopted "shutters down" approach. It is nowhere so defined in any criminal law of the country that evidence means the evidence of eye witnesses only. Evidence may be in any shape, and in search for the truth, this evidence must be appreciated by the courts of law as evidence in criminal trial to come to the truth. In this case, the learned Trial Judge as well as learned APP both shut their eyes to their duties to explore the truth. The worst thing which we find is that the Forensic Science Laboratory report which is produced by the prosecution requires to be exhibited without formal proof under Sections 293 or 294 of the Criminal Procedure Code, is neither exhibited by the Trial Court nor any endeavour was made by the learned APP. Besides, we find from the record that accused himself through his Advocate preferred an Application at Exhibit 7 on 30th of October, 2004, wherein the accused prayed before the Court that in the said case, accused also got injuries and the papers relating to the injuries of the accused be called for and be placed on record as the documents were important for the defence of the accused. The learned Trial Judge passed an order dated 30th of October, 2004 that the application was kept for hearing. However, it appears that, no further orders came to be passed below such application. Perhaps, a judicial adjudication after due consideration, could have assisted the Trial Court to arrive at the truth of the matter, which is the sole purpose of the criminal trial.

(8.) True that criminal justice deals with complex human problems and diverse human beings. On account of relations, witnesses may turn hostile and witnesses may resile when search for the truth is vigorously undertaken through instrumentality of criminal law. In trials, therefore, it becomes the duty of the Judge presiding over a criminal trial, to appreciate the evidence from all corners, and if the evidence is not produced, though available, then, the same could be produced. The courts exist for doing justice to the persons who are affected. As aforestated, the crimes of such nature like murder are affecting the society. The court is not merely to act as a tape recorder recording the evidence, overlooking the object of trial i.e. to get at the truth. The courts cannot be oblivious to the active role to be played, for which there is not only ample scope but sufficient powers are conferred under the Code. The court has a greater duty and responsibility to render justice in a case where it appears that the role of the prosecuting agency itself is dubious. The courts are expected to perform its duties and functions effectively and true to the spirit with which the courts are sacredly entrusted the dignity and authority and an alert judge actively participating in court proceedings with a firm grip on oars enables the trial smoothly to reach at the truth. The interest of the parties in conducting the trial in such a way so as to gain success is understandable, but the obligation of the Presiding Judge to hold the proceedings as to achieve the dual objectives i.e. search for truth and delivering pure justice cannot be subdued. Wherever necessary, even courts are empowered to curb perjury. This is a fact that most of the witnesses coming in the courts despite taking oath, make false statements to suit the interest of the parties. Effective and stern action is required to be taken on such a stand, which may be taken upon the witnesses. The mere existence of penal provisions to deal with perjury would be a cruel joke with the society unless the courts stop to take evasive recourse despite proof of the commission of the offence.