Hon'ble Ramesh Sinha,J.
The State of U.P. has filed the present appeal against the judgment of acquittal dated 07.09.2005 passed by Sri Sudhir Kumar-I, the learned Sessions Judge, Bhadohi at Gyanpur in Session Trial No. 34 of 2001.
The charges were framed on 30th of June, 2004 in a case under Section 436 etc. I.P.C. and Section 3 (2) (4) S.C./ S.T. (Prevention of Atrocities) Act but in spite of having availed of as many as four years the State of U.P. did not produce its witnesses as such the learned trial judge was forced to shut out the prosecution evidence to acquit the accused. Before acquitting the accused persons, the learned trial judge had recorded the statements of accused persons under Section 313 Cr.P.C.
We want, firstly, to point out by referring to Section 170 (2) Cr.P.C. that it is the duty of the officer in charge of the police station by which the case has been investigated into to obtain bonds from persons who are acquainted with the facts and circumstances of the case of an undertaking that they shall appear before the court to support the charges. Thus, the primary duty of production of a witness lies with the police. It is invariably being seen that the above statutory function of the police is being flaunted with impunity. This section might not have been referred to by the Supreme Court in Shailendra Kumar Vs. State of Bihar reported in AIR 2000 SC 274., when their Lordships was pointing out the above proposition of law that it was the duty of the officer-in-charge of the police station by which the case had been investigated into, to remain present before the Court of Sessions with witnesses on day to day basis during hearing of such cases of serious charges which ordinary go to the court of Sessions and the prosecution evidence must not to be shut out in want of production of witnesses. We are of the opinion that here in the present case it could not be said that the learned trial judge was acting in haste. The learned judge was giving sufficient opportunity to the State of U.P. for producing the witnesses, but finding that no witness was produced, he was finally shutting out the prosecution case.
What we further find is that the learned trial judge has not examined any witness. As such, there was no requirement under law to examine the accused persons under Section 313 of the Cr.P.C. The provision of Section 313 Cr.P.C. requires the explanation of the accused persons to be obtained through their examination only when the evidence indicates certain circumstances appearing against them towards their culpability. If there was no evidence then there could not be any circumstance appearing from evidence against any of the accused and as such there could not be any legal requirement for any court to examine an accused under Section 313 Cr.P.C. We are saddened to find that the highest court of the District was acting mechanically to observe the formality of law as it was never required to be observed in absence of any evidence. The F.I.R. is not the evidence. It might be a document, value thereof has repeatedly been pointed out of as being a mere statement which could be used for corroborating or contradicting of the maker of document. The contents of such a document could not be utilised to infer the circumstances appearing against the accused from evidence, because a mere statement and evidence are two different things as per the simple definition of the terms. Evidence is defined by section 3 of the Indian Evidence Act. We, as such, find that that particular exercise of the learned Sessions Judge was not required to be made by law.
We have already pointed out that no witness was present. As such, there was no evidence and there could not have been any other result as was recorded by the learned Trial Judge. We do not find any merit in the application filed under Section 5 of the Indian Limitation Act and in the present appeal. The two are dismissed.
Before we part with the judgment, we feel that it was completely an unnecessary exercise by the State of U.P. to process the appeal for being presented before this Court as it has not only wasted public time in the law department or other sections of the Government, it also wasted public time of this court also. We desire such frivolous appeals should not be filed by the Government and for that purpose, we direct that a copy of the present judgement be sent to the Principal Secretary (Law), Government of U.P.
Order Date :- 9.5.2012 YK