The High Court rejected an appeal against acquittal in an SC/ST Act case, holding that the trial court correctly closed evidence when the sole complainant, after intentional stalling, failed to deposit a ₹2,000/- cost for reopening evidence under Section 311 Cr.P.C.
Application for leave to appeal rejected as devoid of merit; record returned to trial court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Crml Leave To Appeal No. 275 / 2017
Sohanlal S/o Sh. Pukhraj, by caste Dholi (Damami), Resident of Dholiyon-Ka-Bas, Sandeorao, Tehsil- Sumerpur, District: Pali (Raj.)
----Appellant
Versus
Respondents No.2 to 4 are residents of Sanderao, Tehsil Sumerpur, District Pali (Raj.).
----Respondent
For Appellant(s) : Mr. Ranjeet Singh.
For Respondent(s) : Mr. L.R. Upadhyaya, PP.
Mr. K.S. Lodha.
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment
08/08/2017
By way of this application preferred under Section 372 Cr.P.C., the complainant appellant craves leave to file an appeal against the judgment dated 08.08.2016 passed by the learned Special Judge (SC/ST Prevention of Atrocities Act Cases), Pali in Sessions Case No.82/2011 whereby, the respondents No.2 to 4 were acquitted from charges under Sections 341 and 323 IPC and Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act.
Shri Ranjeet Singh, learned counsel representing the applicant complainant urges that trial court acquitted the respondents accused for the sole reason that the appellant being
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the complainant of the case, could not be examined in support of the prosecution case. He urges that the trial court unjustifedly and unreasonably, closed the evidence of the complainant on 09.05.2016. However, liberty was given to the Public Prosecutor to keep the complainant present in the court suo motu on the next date. The Public Prosecutor accordingly presented the complainant in the Court on 06.06.2016 and filed an application under Section 311 Cr.P.C. for recording his evidence. The trial court accepted the said application by order dated 04.08.2016. However, a highly unreasonable onerous condition was imposed by the trial court that the applicant herein being the witness would be required to deposit cost of Rs.2,000/- before his evidence could be recorded. Learned counsel submits that there was no justification or occasion for the trial court to have imposed such an unreasonable onerous condition on the complainant who was prevented from appearing in the trial court for giving evidence because his son was ailing for the previous one year. He thus urges that the impugned judgment should be set aside and the matter be remanded to the trial court for recording evidence of the appellant complainant and rendering a fresh decision as per law.
Per contra, Shri K.S. Lodha, learned counsel representing the accused respondents, urges that the prosecution evidence was commenced way back in the year 2011. The applicant being the complainant of the case was summoned to give evidence for the first time way back on 26.11.2011. Summons were repeatedly issued to secure his presence but he intentionally did not appear for deposition in the court. On 05.01.2015, he was summoned by
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bailable warrant and when despite that, he failed to appear in the court, warrant of arrest was issued against him. The accused Rustam Khan submitted an application in the trial court conveying that the witness was present in the village but was intentionally avoiding to give evidence in the matter. The complainant was also represented by a counsel. Considering all these circumstances, the trial court closed the evidence of the complainant. However, liberty was given to the prosecution to keep the witness present in the court and seek reopening of evidence. He urges that the accused had suffered protracted trial for almost five years but inspite thereof, the trial court accepted the prayer of the complainant for being examined in evidence by accepting the application filed under Section 311 Cr.P.C. while imposing a reasonable cost of Rs.2,000/-, vide order dated 04.08.2016. The complainant did not deposit the said cost amount upon which, the trial court was left with no option but to close his evidence once more. He further submits that as the complainant himself did not appear to give evidence and as there was no other material available on record in support of the prosecution case, the trial court was perfectly justified in acquitting the accused persons from the charges.
I have heard and considered the arguments advanced by the learned counsel for the parties and have gone through the record and the impugned judgment.
Admittedly, the complainant was represented by a counsel in the trial court. He was summoned for the first time way back on 25.11.2011. Since then, process was repeatedly issued to secure the presence of the complainant in the Court but he failed to do
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so. Finally, the accused submitted an application in the trial court indicating that the complainant was avoiding to give evidence despite being available in the village all along. The trial court was convinced with the plea of the accused and closed evidence of prosecution on 03.06.2016 giving liberty to the public prosecutor seek reopening of evidence if he was able to keep the complainant present in the court of his own. Just three days later, the complainant himself appeared in the trial court through the Public Prosecutor and filed an application under Section 311 Cr.P.C. for being allowed to give his evidence. Considering the fact that the complainant had delayed the proceeding of the trial for a significant period, the trial court conditionally accepted the prayer for reopening his evidence vide order dated 04.08.2016 subject to depositing cost to the tune of Rs.2,000/- which, in the opinion of this Court, was perfectly justified. It is apparent that the complainant was playing a cat and mouse game with the court and was deliberately avoiding to give evidence in the matter despite being aware of the proceedings. It was pleaded by the complainant in the application under Section 311 Cr.P.C. that he could not appear to give evidence earlier because his son was ailing from some disease for the previous one year. However, the application did not explain the absence of the complainant for the previous four years during which, he was repeatedly being summoned by the trial court to give evidence even though, a lawyer was representing him in the proceeding. Apparently thus, the complainant was responsible for intentional stalling of the trial and the trial court was perfectly justified in imposing the meager
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cost of Rs.2,000/- upon the complainant vide order dated
04.08.2016 for reopening his evidence. As the complainant failed to deposit the cost, there was no option for the trial court but to close his evidence. The fact that the complainant himself appeared in the trial court with the Public Prosecutor on 06.06.2016, i.e. just three days after closure of the prosecution evidence gives rise to a strong suspicion that he was all along aware of the proceedings being undertaken in the trial court and was intentionally avoiding to appear for giving evidence. Two vakalatnamas submitted on behalf of the complainant are available on the record of the trial court. The first vakalatnama was presented in the year 2011. Soon after submitting the vakalatnama, the complainant procured certified copies of the order-sheets of the trial court through a copying application dated 24.11.2011. The complainant procured copies of the further proceedings through copying application dated 12.12.2012. On 08.05.2014, the complainant engaged another counsel named Smt. Usha who procured copies of order-sheets of the trial court by filing a copying application on 08.05.2014. Thus apparently, the complainant was keeping watch on the proceedings of the Court but was intentionally avoiding to appear for testifying and thereby managed to stall the proceedings of trial for almost 5 years. The application filed on behalf of the complainant under Section 311 Cr.P.C. to reopen his evidence is not supported by any document which could satisfy the court that his absence was justified on account of the some serious ailment of his son. The medical documents annexed with the application only indicate that the
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complainant’s son was diagnosed with stone in kidney in the month of May, 2016. Thus apparently, the plea putforth in the application that the complainant was mentally disturbed on account of serious ailment of his son was patently false and it is the firm opinion of this Court that his application should have been rejected outright as being vexatious and malfide.
Since the complainant did not appear for giving evidence before the trial court to support the allegation that the accused hurled caste based abuses to him and that he was assaulted by the accused, the trial court was perfectly justified in acquitting the respondents accused from the charges. The impugned judgment dated 08.08.2016 ex-facie does not suffer from any shortcoming, either factual or legal, so as to require interference.
Consequently, the instant application for grant of leave to appeal is hereby rejected as being devoid of merit.
Record be returned to the trial court.
(SANDEEP MEHTA)J.
Tikam/43
3 issues framed by the court
Whether the High Court should interfere with the acquittal of accused persons where the sole witness (complainant) failed to give evidence due to his own intentional delay.
Whether the imposition of an ₹2,000/- cost condition for reopening evidence under Section 311 Cr.P.C. was justified.
Whether the trial court was justified in closing the prosecution evidence due to the complainant's failure to deposit the imposed cost.
4 provisions across 3 enactments
Sohanlal S/o Sh. Pukhraj
State of Rajasthan
Rustam Khan S/o Rahim Bux
Shakoor Mohd. S/o Taj Mohd
Ayub Khan S/o Taj Mohd
Sandeep Mehta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
