THE STATE OF HARYANA Vs. MOHAN SINGH

JUDGEMENT

(1.) THIS is a State Appeal against the order dated the 14th of August, 1967, of Shri R.P. Singh, Magistrate 1st Class, Gurgaon, acquitting the Respondent Mohan Singh, of offences under Section 279 and 338 of the Indian Penal Code without recording any prosecution evidence.

(2.) THE relevant facts are these. The Gurgaon police presented in the Court of the learned Magistrate a report under Section 173 of the Code of Criminal Procedure stating that the Respondent had driven rashly and negligently car No. DLI 8403 on the 25th of November 1966, and had caused grievous hurt to a girl named Veena. who was only seven years old, in consequence. The names and particulars of eight witnesses from whose testimony the prosecution intended to prove its case were cited in the calendar of witnesses appended to the report. On the 8th of May 1967, a charge under Sections 279 and 338 of the Indian Penal Code" was feared against the Respondent who pleaded not guilty to it. The case was adjourned to the 5th of June 1967, with a direction that the' prosecution evidence would be recorded on that date. On the adjourned hearing the accused was present with counsel and the spurdar with the case property (which consisted of the said car). No prosecution witness however. appeared and the learned Magistrate adjourned the case to the 19th of June, 1967, saying that he was thus giving the prosecution another opportunity to produce their evidence. On the 19th of June, 1967, however, again no prosecution witness appeared although the accused and his counsel were present. The learned Magistrate found that the summonses issued to the prosecution witnesses had not been received back. Nevertheless he granted just another adjournment of the case to the 17th of July 1967, making it clear that if no prosecution witness was produced even, on that day, the prosecution evidence would be deemed closed. On the 17th of July, 1967, only one prosecution witness (named Banwari) was present. The accused, who had also appeared, stated that the car above mentioned was cut of order and could therefore, not be brought to court. He further played for an adjournment which was granted. The case was posted for the 14th of August, 1967, with a direction that the car and all the prosecution witnesses be produced on that date. When the case was taken up on the 14th of August, 1967, the learned Magistrate found that the summonses issued to the prosecution witnesses had not been received back and that none of them was present. He declared the prosecution evidence closed and acquitted the accused for want of any inculpatory material against him.

(3.) MR . Mittal relied upon The State v. Kali Ram, (1967) 69 P.L.R. 469, a case decided by a Division Bench of this court consisting of S.H. Capoor and Gurdev Singh, JJ. The facts of that case, however, are clearly distinguishable There, one Kali Ram was charged with offences under Sections 324 and 354 of the Indian Penal Code on the 29th of October, 1963, when the case was adjourned to the 12th of November, 1963, with a direction that the prosecution evidence be summoned for the date On the date last mentioned, however, Kali Ram failed to appear and continued to be absent on subsequent dates of hearing till the 12th of September, 1964, when the case was adjourned for four days. On the adjourned hearing it was found that the case property was not available. The Court directed that the prosecution evidence in the care would be recorded on the 26th of September, 1964. On that date, however, only one witness was present and his statement was taken down. Fresh summonses were directed to be issued to the other prosecution witnesses for the 14th of October, 1964. On the hearing fixed for that date the case was taken up by another Magistrate Shri Gogia by name, to whom it had been transferred in the mean time and was adjourned to the 22nd of October, 1964, for the reason the none of the prosecution witnesses was present On the 2nd of October. 1964, it was found that summonses had not been received back, Shri Gogia refused to grant any further adjournment to the prosecution closed its evidence and acquitted Kali Ram for want of proof against him. It was in these circumstance, that Gurdev Singh, J., who delivered the judgment of the Division Bench, observed: