Prakash v. The State of NCT of Delhi

PRADEEP NANDRAJOG, J.

ARUNA SURESH, J.

JANUARY 29, 2009 mm

i.12 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Order: 29th January, 2009 + CRL.A. 666/2004 PRAKASH ..... Appellant Through: Mr. Rajesh Mahajan, Advocate versus STATE ..... Respondent Through: Mr. Pawan Sharma, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes. 3. Whether judgment should be reported in Digest? Yes. : PRADEEP NANDRAJOG, J. (Oral) 1. Since the last 15 days, while hearing criminal appeals, we have noticed a good number of disturbing features pertaining to Sessions Trial. The instant case has compelled us to pen down our experiences, which needless to state, are not reflective of a healthy and a vibrant criminal justice delivery mechanism in the District Courts. 2. The warm and the living hands of a Judge are the best reassurance to an accused that his fundamental right, of life and liberty, enshrined under the Constitution is preserved and protected. When these hand turn cold, the first casualty is Article 21 of the Constitution. 3. From the framing of the charge; recording evidence; examining the accused under Section 313 Cr.P.C.; hearing final submissions made by counsel for the accused, and dealing with the same with reference to the evidence and the circumstances of the case, till final judgment is pronounced; at each stage the Presiding Judge has to be in charge of the case. 4. We have been coming across cases where witnesses to the recovery, without stating that the accused led the police party to the place and without stating that the accused pointed out the place wherefrom he could get recovered a particular weapon of offence, simply state that accompanied by the police he went to the site and recovery memo Ex.--- was prepared in his presence. The objection of counsel for the accused is immediately recorded to the effect that the recovery memo has not been proved as per law and hence cannot be exhibited. We have been noticing that in all such cases the objection has been noted by the Presiding Judge with a further note that it would be decided at the final stage. In each and every final decision we find that the learned Judge has not dealt with the objection. 5. Indeed, the damages of this kind can never be undone unless the witness is recalled for re-examination and made to depose, as required by law, that he was present at the spot when the accused got recovered a particular object from a particular place and that it was seized by the police in his presence and that the recovery memo was drawn up in his presence and was thereafter signed by him. 6. Evidence recorded in such manner obviously shows that the Judge who recorded the evidence was not live to what was happening in his Court. 7. We have been noticing that a witness of the prosecution suffers from a momentary memory loss and is not correctly answering a question put to him by the public prosecutor. The witness is immediately declared hostile. 8. It is elementary knowledge of law that with the permission of the Court, even during examination-in-chief, a suggestion or a leading question can be put to a witness. 9. We have been noticing cases where the witness wrongly names an accused and is immediately declared hostile. Otherwise, the witness is fully supportive of the prosecution. On being declared hostile, the witness immediately corrects himself that he had made a mistake in referring to A as B and vice- versa. This has to be avoided for the reason once a witness is declared hostile the defence immediately pounces upon the argument that the witness lacks credibility. 10. We have come across a few instances where a charge was amended mid-trial, but the witnesses on basis of whose deposition the charge was amended were not re- summoned for cross examination. It is elementary law that where, mid-trial, a charge is amended, the relevant witnesses have to be re-summoned for further cross