HIMATSINH BHAIJIBHAI Vs. MANHARSINH ABHESINH

JUDGEMENT

(1.) It may be noted that in course of the trial the learned Public Prosecutor in charge of the Sessions trial did not examine the Head Constable the Magistrate and P. S. I. Bava who had inquired into the cause of the death of the deceased as prosecution witnesses before whom the deceased stated that she died as a result of cooking and the learned Sessions Judge had to examine them as Court witnesses. We need hardly emphasise the fact that a Public Prosecutor holds the statutory office and he owes a heavy responsibility when he conducts a sessions trial against any citizen who is more particularly charged with the offence of murder. In the instant case we fail to understand as to how there could have been any hostility between the complainants party on one side and the police constable and the Magistrate on the other side. The papers before us do not reveal that there was any tittle of enmity between the Police Head Constable or the Magistrate on one side and the complainant on the other side. It is understandable if the Public Prosecutor had dropped the said witnesses on the ground of hostility or on the ground that the examination of the Head Constable and the Magistrate would unnecessarily burden the record of the case but as stated above the said witnesses were dropped as prosecution witnesses without arty justification and possibly with the only idea that if they were examined they would have come out with the true story of the deceased receiving the burns as a result of cooking. It is true that the Public Prosecutor has an absolute discretion when he drops any witness as a prosecution witness in course of the conduct of the sessions trial but when he holds such a statutory office he is supposed to use his discretion on well recognised principles and in the said discretion of any public prosecutor rules of fair play and a keen desire to find out the veal truth must necessarily be reflected. With a feeling of distress ate must say that it is high time when we must remind our State prosecutors that they are not supposed to secure an order of conviction either at the cost of fairness or by deliberately keeping away the real truth from a mass of falsehood. No doubt in course of the trial the aforesaid persons viz. the Police Head Constable the Magistrate and P. S. I. Bava were examined as court witnesses but that can hardly exonerate the Public Prosecutor for the failure of his duty.

(2.) In the case before us we have noted the fact that accused No. I the husband of the deceased did donate his blood to the deceased and also spent Rs. 2500.00 to Rs. 3000.00 for the medical treatment of his wife. Under the circumstances we are convinced that the learned Sessions Judge was perfectly justified in passing the impugned order of acquittal. No errors of law were pointed out to us or any perverse appreciation of evidence was shown to us in course of the hearing of this application.

(3.) In view of what has been stated above we do not think that this is a fit case where we should grant leave to appeal against the impugned order of acquittal. . . .. ... ... ... [ Rest of the judgment is not material for the reports. ] Application rejected: Leave to appeal refused.