STATE OF MADHYA PRADESH Vs. GANJLE

JUDGEMENT

(1.) The State has preferred this appeal against acquittal of the respondents for the offence under sections 332 and 333 Indian Penal Code or in the alternative under sections 332 and 333 read with section 34 Indian Penal Code by the Additional Sessions Judge in Sessions Trial No. 29 of 1978.

(2.) The prosecution case is that on 12-2-1978 Forest Guard Babulal found these respondents unauthorisedly hunting in the Government forest. Respondents 1, 2 and 5 were armed with guns white the other respondents were armed with other weapons. When Babulal tried to prevent them, he was assaulted by these respondents and he received as many as 25 injuries, three of which were lacerated wounds and rent contusions and abrasions. He lodged a report on the next day at 9.30 a.m. in police station Mohta. The complainant was sent for medical examination and the doctor found 25 injuries including fracture of the middle finger of the left hand. The respondents were taken into custody and from the respondents 1, 2 and 5 guns with their licences were seized. After completing the investigation the respondents were charge-sheeted. The case was committed to the Court of Session Charges, were framed the aforesaid sections by the Additional Sessions Judge on 23-2-1978 and the case was fixed for 3-8-1978 but as the Presiding Judge was on leave the case had to be adjourned to 4-8-1978. On that day seven witnesses were examined viz., Dr. B. L. Jharate (P.W. 1), Mangal Singh (P.W. 2); Chaitram (P.W. 3), Gannu (P.W. 4), Damji (P.W. 5), Kanhaiyalal (P.W. 6) and Gulab Rao (P.W. 7). The prosecution applied for issue of fresh summons to Babulal, Ramadhar, Gurudeen, Jhangu and P.S.I. Dubey. The prayer was disallowed by the trial Judge saying that the prosecution was negligent in getting the witnesses summoned in time. After recording the statements of the respondents on 7-8-1978 they were acquitted on 12-8-1978. In the absence of the evidence of the complainant Babulal and the other two eye-witnesses Jhangu and Damji having turned hostile, the Additional Sessions Judge acquitted the respondents.

(3.) After hearing the parties, I am of the opinion that the acquittal is not justified. It appears that the Additional Sessions Judge was in great haste in disposing of the case. Complainant Babulal was the most important witness in the case and it has been proved from the medical report the, he received, as, many as 25 injuries including fracture of his middle finger. The case was fixed for 3- 8-1978 for examination of the prosecution witnesses were examined on the next day, i.e. on 4-8- 1978 but the summons to Babulal and 3 other witnesses and the investigating officer were not returned back served. The trial Judge ought to have waited for the return of the summons after service or acceded to the prayer of the prosecution for issue of fresh summons to them. A duty is cast upon the, Court for, enforcing the attendance of the witnesses by the process provided under the Criminal Procedure Code. The Courts are, therefore, not absolutely powerless if the parties fail to produce evidence in Court. On the other hand, power of the Court, in this respect is very wide and the Court may at any stage of proceeding summon any witness in order to determine the truth or otherwise of the fact of the case under trial before him. When the summons to the witnesses were not returned back after service the trial Judge ought to have awaited service of summons or to save time should have Issued fresh summons to them. Even if a witness failed to appear even after service of summons, Court can secure his attendance by coercive process, i.e. by issuing bailable or non-bailable warrants of arrest. If the trial Judge was so keen to dispose of the case at an early date, he should have directed the prosecution to send a special messenger for effecting service on the witnesses.