Amit Dayalbhai Makwana vs State of Gujarat

S.G. Shah, J.—The petitioner is original complainant; whereas, respondent is prosecuting agency. The petitioner has not joined the original accused as respondent, since the impugned order is with reference to further investigation u/s. 173(8) of Code of Criminal Procedure, wherein the accused have no right or locus standi to oppose or defend such request. Therefore, at present, the respondent - prosecuting agency is not defending or disputing the revision when the trial Court has rejected the application for further investigation by impugned order dated 2.7.2013 in Sessions Case No. 128 of 2012. Therefore, practically, the impugned order has raised the dispute between trial Court and the complainant.

On verification of record, where in police papers are produced, it transpires that on 21.12012, an incident had taken place wherein family members of the complainant has been seriously beaten and they received serious and grave injuries at the hands of respondents. For such incident, an F.I.R. being C.R. No. I-14 of 2012 was registered with Vartej police station, Bhavnagar District on 21.1.2012. After inquiring the incident, the investigating agency has filed chargesheet No. 32 of 2012 on 17.3.2012 from which Session Case No. 128 of 2012 has been initiated and registered. In such Sessions Case, during the trial the applicant/complainant has submitted an application at Exh. 96 on 6.6.2013, requesting for further investigation on several count. However, such application was rejected by 2nd Addl. Sessions Judge, Bhavnagar vide impugned order dated 27.2013 which is under challenge.

In addition to such factual history regarding litigation, bare facts of incident is also required to be considered, which categorically confirms that on 22.1.2012, some incident has taken place as alleged in the F.I.R., wherein several members of the family of the complainant, including his father Dayalbhai Keshubhai Makwana was seriously injured and received grave injuries. However, amongst all victims, atleast said Dayalbhai Keshubhai Makwana was so injured that even after taking him to hospital under the service of 108 and even after immediate treatment, since there was grave head injuries, he falls into coma and having serious effect of paralysis, which restrained him from free movement and even to speak. In view of such conditions, though his name was disclosed in the chargesheet as witness being injured persons, since the investigating agency could not record his statement during investigation, chargesheet was filed without his statement. It seems that during trial, such witness was required to be brought to the Court, because of the instructions of the Court to keep him present and, therefore, on 15.4.2013, complainant has kept the witness present in the Court premises, but considering the position of the witness, an application at Exh. 65 is submitted requesting to grant one month''s time, disclosing that witness Dayalbhai Keshubhai Makwana is witness in the matter and that he has been kept present before the Court as per the instructions of the Court, but, he has received serious and grave injuries because of the assault by the accused and because of such injuries, though witness is present in the Court premises, he is unable to climb the stairs of the Court and he has difficulty in speaking and thereby he is not in a condition to depose. It is further stated that however, said witness is victim by the assault of the accused and, therefore, the important and key witness in the case and, hence, one month time may be granted to allow him to depose before the Court so that he may be cured within one month and depose properly.

Unfortunately, such application has been rejected by an order dated 17.4.2013 by the then Addl. Sessions Judge, Bhavnagar, observing that when statement of witness has not been recorded by the investigating officer, there is no question of contradiction of his deposition and statement and, therefore, time of one month cannot be granted to the witness so as to enable him to depose after he becomes well from his sickness. Though order below Exh. 65 was challenged before this High Court and it was set-aside and thereby now though it is not in existence, it is relevant to refer such order so as to visualise the attitude of Sessions Court in dealing with such witness and such matters.

The trial Court has while dismissing the application at Exh. 65, observed that there is no possibility of recovery of the witness, namely, Dayalbhai Keshubhai Makwana and, therefore, there is no reason to grant time for a month or so. Unfortunately, at that time itself, the trial Court has failed to consider the fact that deposition of injured witness is very much material in such cases and, therefore, even if this witness is not to be examined in view of order below Exh. 65, then also it is relevant and necessary for the prosecution to prove on record the medical condition of such witness by appropriate evidence. Even for such evidence, prosecution needs some investigation and calling upon some medical witness, and for proving of such fact, some time would certainly be required.

In any case, order below Exh. 65 was challenged by the complainant before this Court by way of Criminal Revision Application No. 294 of 2013 wherein this Court (Coram: Hon''ble Mr. Justice A.J. Desai) has while allowing the revision application, held that learned Sessions Judge ought to have considered the application of the complainant and ought to have granted time for recording deposition of the important witness for prosecution. It is obvious, because, in absence of deposition or disclosure of relevant fact regarding inability of the injured witness to depose due to his health, would go against the case of the prosecution and may benefit the accused to secure the acquittal on such ground that injured victim has not come before the Court to confirm the criminal acts by them. However, while allowing the revision application, when this Court has directed the Sessions Judge to assign date of examination of such witness; namely, Dayalbhai Keshubhai Makwana in particular week commencing from 3.6.2013 with a direction that no further time shall be granted to the complainant for examination of said witness; such observation has impressed upon the Sessions Court to dismiss the application, Exh. 96 whereby now complainant has prayed for further investigation, when injured witness Dayalbhai Keshubhai Makwana is now available for adducing evidence before the Court.

So far health of said witness is concerned, now, he has filed an affidavit before this Court on 5.10.2013 disclosing that now he is able to speak and understand and he is in a position to explain about the occurrence of the incident. It is further stated on oath by such witness that since police has not recorded his statement, and thereby police has not bothered to inquire about the weapons used by the accused while injuring him, it is necessary to first record his statement and to investigate further regarding the incident before calling him as a witness in the case. He has also stated that he will co-operate in the investigation and that since his name is already disclosed in the chargesheet and since he has not been allowed to disclose the fact known to him alone to the police, so as to inquire and investigate the relevant evidence against the accused, it is necessary to record his statement and to direct the investigating agency to inquire further with reference to information that would be disclosed by him for further investigation. The F.I.R. categorically confirms that even complainant/applicant was also injured and said Dayalbhai Keshubhai Makwana is father of the complainant and when Dayalbhai he tried to control the quarrel, he was also seriously beaten and, therefore, F.I.R. may simply disclose the occurrence of incident and may not have disclosure about particular act and minute details of the incident inasmuch as who has given blow with which weapon to the injured victim Dayalbhai Keshubhai Makwana. Such fact can be disclosed only by such injured witness and, therefore, recording of his statement and further investigation if any after such statement is very much essential and necessary so as to bring the truth before the Court.

However, if we peruse the impugned order, though applicant has pleaded almost each and every issue including citations to confirm the jurisdiction of the Court, to order for further investigation, the Sessions Judge has though reproduced entire pleadings and arguments in detail, rejected the application mainly on two grounds i.e. (1) that application is filed only with a view to prolong the trial and (2) that deposition of such witness can be recorded even if his statement is not recorded since it is permissible under law. For coming to such conclusion, the Sessions Judge has relied upon and guided by the direction by this Court in previous revision application being Criminal Revision Application No. 294 of 2013 wherein by judgment and order dated 9.5.2013, this Court (Coram: Hon''ble Mr. Justice A.J. Desai) has entrusted that "no further time shall be granted to the complainant for examination of said Dayalbhai Keshubhai Makwana".

However, learned Addl. Sessions Judge has failed to consider that such observation and direction is mainly with a view to see that Sessions Case should be decided at the earliest, but in any case any such direction cannot be read against the settled principles of law and cannot curtail the right of the litigant or jurisdiction of the Court to take appropriate steps in accordance with law, if facts and circumstances and law requires to take any such step at any stage.

For the sake of argument or understanding, when Court has stated that no further time shall be granted; supposed such witness met with some accident and cannot be available on the given date or his medical condition is deteriorated on the fixed date, which makes him unable to depose, then, irrespective of refusal to grant a date as directed in judgment and order dated 9.5.2013 in Criminal Revision Application No. 294 of 2013, it would be necessary for the Sessions Court either to call upon the perfect opinion regarding the health and medical condition of such witness, if not for prolonging litigation, then atleast for deciding the result of the assault upon the victim. Thereby, atleast trial Court has to call for the latest medical evidence so far as condition of the victim is concerned before proceeding further. It seems that the trial Court has failed to do so. So far as factual details regarding commission of crime and minute facts regarding incident are concerned, I do not wish to discuss those facts at present so as to avoid prejudice to either side during final trial.

So far as law is concerned, now it is settled legal position that Court has ample jurisdiction to direct and investigating agency has ample power to investigate further for the incident even after filing of the chargesheet, so as to bring the truth before the Court, which may be either in the form of additional evidence or additional accused or even for better evidence against the accused who are already charge-sheeted. At the most, such powers are subject to applicable law and rule.

So far as question for anxiety of delay in completing the trial by the Sessions Court is concerned, no doubt that every Sessions Case should be decided at the earliest. It goes without saying that such early decision can never be at the cost of finding out the truth. So far as right and harassment to accused are concerned, since the accused are now on bail, and since they could never oppose the proper investigation, there is no reason to refuse the seriously injured victim to disclose the material evidence initially to the investigating officer so as to investigate further in line of such disclosure, so as to find out the truth and real evidence against the accused.

Even if we consider that the trial Court is in hurry to decide the case, then in that case, instead of calling the paralysed witness in the Court house, trial Court may have appointed a local commissioner to record the deposition of such witness, if not at his place, then atleast on the ground floor of the Court premise or on humanitarian ground, Court shall manage atleast during deposition of such paralysed witness to get its sitting on the ground floor of the Court premise. It cannot be ignored that victim has received serious head injuries for which he is operated and was under prolonged treatment.

In view of above facts and circumstances, the impugned order needs to be quashed and set-aside and thereby it is quashed and set-aside. The investigating agency has to inquire about and shall bring on record the factual details regarding medical condition of Dayalbhai Keshubhai Makwana - injured victim and witness of the crime, so as to confirm that whether he is able to move and to depose to disclose the facts before the investigating agency in proper manner and to depose on oath before the Court. If investigating agency gets such conation, then they shall record the statement of such witness and shall further investigate about the crime, which may be limited with reference to the statement of such witness. If any material and additional information or facts is disclosed on the record of investigation, then the investigating agency shall place such information on record of the case in proper manner. The investigating agency shall complete all such activities within four weeks from the date of receipt of such order. By all means, the investigating agency shall disclose the outcome and report of such further investigation before the Sessions Court within four weeks'' from the date of receipt of the wit of such order. Thereafter, the trial Court shall call upon the witness Dayalbhai Keshubhai Makwana for evidence and if needed, his evidence may be recorded by appointment of local commissioner. The revision application is hereby allowed in the aforesaid terms.