IN THE HIGH COURT OF CHHATTISGARH, BILASPUR
Navin Sinha, P. Sam Koshy, JJ.
Sunil Dewangan, S/o Balram Dewangan – Appellant
Versus
State of Madhya Pradesh (now Chhattisgarh) through Station House Officer, City Kotwali, Bilaspur (Madhya Pradesh) – Respondent
Criminal Appeal No.1160 of 2000
Decided On : 04-05-2016
Criminal Procedure Code1973 - Section 70(2) - Its criminal jurisdiction - Investigating - Counsel was appearing in cause-list and was also being displayed on LED system installed in Court premises and Bar room- Referring State of Uttar Pradesh Court granted one more indulgence with observation that if re was no representation on behalf of Appellant on next occasion matter may not necessarily be adjourned- Simultaneously High Court Legal Services Committee was also required to nominate Panel Lawyer in event that on next date re was no representation on behalf of Appellant again- This matter was taken-up in previous week when no one appeared for Appellant Advocate informed us that he had been nominated by High Court Legal Services Committee - At his request to prepare brief for assisting us matter was passed over for week and has now come-up for hearing before us- Today also Counsel who has filed power appears in cause-list and has been continuously displayed on LED system of Court throughout hearing which continued for over but no appearance on his behalf –Held, Case of homicidal burn after killing tell tale injuries may not be visible because of effect of burning on skin- Medical Jurisprudence dealing with death asphyxia in Chapter heading Types of Strangulation mentions throttling manual strangulation further dissection he found fracture on right hyoid bone at junction with its body and on opening larynx and pharynx he noted blood-stained froth in cavities y were ante-mortem in nature- stomach was empty- Peritoneum organs of generation walls ribs and cartilages were congested- right side of heart was full of dark blood and left side contained scanty blood- Except both feet re were burns all over body was no line of redness were false vesicles- At places such vesicles were full of air base of which was yellow dry and hard not red and coppery burns were and As stated earlier he opined that death was due asphyxia by strangulation which was sufficient to cause death in ordinary course of nature- He opined that deceased must have been died For suggestions given to doctor counsel in cross-examination that if deceased had sprinkled kerosene on her and had set fire and while in agony if she runs and in that process if she fell in such a condition that her throat comes in contact with a protruding part of wall resulting constriction of windpipe he categorically that such a fall of victim would cause only partial constriction and it not possible to cause fracture to hyoid bone- He further stated that death could not be due to suffocation- He also ruled out possibility that hyoid bone is not likely to be fractured by fall against hard surface- He also stated that burns were post-mortem because re were no soot present trachea or wind pipe- Thus he positively ruled of alternatives or suicide - Appeal dismissed
Navin Sinha, J.
1. The Appellant stands convicted on 8.4.2000 to life imprisonment under Section 302 IPC and fine of Rs.2,000/-, in the event of failure to pay which he was required to undergo one year further simple imprisonment ordered by the 6th Additional Sessions Judge, Bilaspur in Sessions Trial No.59 of 2000. The appeal was filed on 28.4.2000. The Appellant was granted bail on 27.4.2001. It came to be cancelled on 9.9.2014 due to non-representation and warrants issued. I.A. No.1 of 2014 was then filed on 10.10.2014 under Section 70(2) Cr.P.C. for cancellation of the warrant. It was allowed on 24.11.2014 pursuant to undertaking that the Appellant would not misuse the privilege and would be properly represented when the appeal was taken-up for hearing.
2. The appeal was called out for hearing on 18.4.2016. Notwithstanding the undertaking no one appeared for the Appellant. The order also notices that the name of the Counsel was appearing in the cause-list and was also being displayed on the LED system installed in the Court premises and the Bar room. Referring to (2014) 14 SCC 222 (Surya Baksh Singh v. State of Uttar Pradesh), the Court nonetheless granted one more indulgence with the observation that if there was no representation on behalf of the Appellant on the next occasion, the matter may not necessarily be adjourned. Simultaneously, the High Court Legal Services Committee was also required to nominate a Panel Lawyer in the event that on the next date, there was no representation on behalf of the Appellant again. This matter was taken-up in the previous week when no one appeared for the Appellant and Shri Alok Kumar Pandey, Advocate informed us that he had been nominated by the High Court Legal Services Committee. At his request to prepare the brief for assisting us, the matter was passed over for the week and has now come-up for hearing before us. Today also, the name of the Counsel who has filed power appears in the cause-list and has been continuously displayed on the LED system of the Court throughout the hearing which continued for over 1½ hours, but there is no appearance on his behalf.
3. In Surya Baksh Singh (supra), anxiety was expressed with regard to cases like the present where coercive measures including non-bail able warrants had to be resorted to for non-appearance at the time of the hearing of the appeal as distinct from inadvertent non-appearance observing that the Apex Court was perturbed about the malaise regarding willful withdrawal from the proceedings after succeeding in gaining enlargement on bail. The observations at paragraph 25 are extracted as follows:
“25. The enunciation of the inherent powers of the High Court in exercise of its criminal jurisdiction already articulated by this Court on several occasions motivates us to press Section 482 into operation. We reiterate that there is an alarming and sinister increase in instances where convicts have filed appeals apparently with a view to circumvent and escape undergoing the sentences awarded against them. The routine is to file an appeal, apply and get enlarged on bail or get exempted from surrender, and thereafter willfully to become untraceable or unresponsive. It is the bounden duty cast upon the Judge not merely to ensure that an innocent person is not punished but equally not to become a mute spectator to the spectacle of the convict circumventing his conviction. (See Stirland v. Director of Public Prosecutions, (1944) 2 All ER 13 (HL), quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh, (2003) 11 SCC 271.) If the court is derelict in doing its duty, the social fabric will be rent asunder and anarchy will rule everywhere. It is, therefore, imperative to put an end to such practice by the expeditious disposal of appeals. The inherent powers of the High Court, poignantly preserved in Section 482 CrPC, can also be pressed into service but with care, caution and circumspection.”
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