MOTILAL KUMBHAR Vs. STATE

JUDGEMENT

(1.) THE Appellant Motilal Kumbhar was convicted by the Assistant Sessions Judge of Sambalpur of an offence punishable under Section 235, I.P.C. and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 501/ -, in default to undergo rigorous imprisonment for two months more. His wife Tulsa Kumbharen also was tried along with him for offences punishable under Sections 235 and 243, I.P.C. She was convicted of the offence under Section 243, I.P.C. and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 50/ -, in default to undergo rigorous imprisonment for two months more. She was acquitted of the charge under Section 235, I.P.C. She has not appealed.

(2.) THE prosecution case is that both the accused persons came to Jharasuguda on 27 -7 -1957 and lived in a rented house of Ramkishan Agarwalla (P.W.3). On 30 -7 -1951 at about 12.30 P.M. the Appellant Motilal was brought under arrest to the Jharsuguda Police Station by the Havildar. He was then taken to his house at about 2.30 P.M. Tulsa Kumbharen, his wife Was searched through a female named Ketaki and thirty counterfeit Indian coins in a Batua were recovered from inside her Ghagra. Two other Batuas were also recovered from inside her Ghagra and they contained some change and currency notes. During the search of the house both inside and outside, white powder in a cigarette tin, black powder in another tin, one piece of antimony, etc. were recovered. Some of these M. Os. recovered from outside the house. P.Ws. 1 and 3 are the search witnesses. P.W. 2 is the coin expert of the Government of India who gave a report after these things found were sent to Government Mint, Calcutta. P.W. 4 is the investigating Sub Inspector.

(3.) BUT I cannot help observing that the investigation and the enquiry were not conducted properly. The wife of the Appellant, it is alleged by the prosecution, was searched by a female named Ketaki who found in her possession 30 counterfeit coins which fact was the subject matter of the charge against her under Section 243, I.P.C. and for which she was convicted. This Ketaki unfortunately is not examined by the prosecution. She is the most important witness to prove the fact of possession of the counterfeit coins by the wife of the Appellant. She was named in the charge -sheet as a witness and she was summoned to appear in the sessions court. But beyond that the learned Government Advocate could not show me from the records as to why this witness was not examined in the sessions court. The public prosecutor who conducted the case should have asked for an adjournment of the case if that witness did not turn up on the day of the trial. I find from the order -sheet of the Assistant Sessions Judge that the witnesses present were examined which would show that she was not present on that day. It was up to the public prosecutor to apply for coercive process against that witness instead of simply closing the case. The Assistant Sessions Judge also should have seen that the evidence of that witness is brought into record and should have adjourned the case and issued process against the witness. It is regrettable that this step which is necessary in the interests of justice was not taken. The conviction of this accused, the wife, was passed upon the evidence of P.Ws. 1 and S who stated that Ketaki searched this woman In their presence. Section 52 of the Code of Criminal Procedure requires that whenever it is necessary to cause a woman to be searched, the search shall be made by another woman, with strict regard to decency. The learned Assistant Sessions Judge accepted the evidence of these two witnesses when they stated that accused No. 2, the wife was searched in their presence by Ketaki by saying that during the search there w s no violation of any decency. I think, the learned Assistant Sessions Judge is wrong. The search of Tulsa Kumbharen by Ketaki In the presence of P.Ws. 1 and 3 as also the investigating Sub -Inspector itself cannot be said to be with strict regard to decency as search of a female to remove Batuas from her Ghagra in the presence of males is not in accordance with decency.