Imdadulla Sharif @ Imdad and Syed Aslam@ Aslam vs State of Karnataka

K.N. Keshavanarayana, J.—During the course of the examination-in-chief of PW8 in SC No. 339/2005 on the file of the Fast Track Court-X, Bangalore City, learned Public Prosecutor wanted to show some of the articles seized under panchanama to the witness. At that stage, defence counsel raised objections on the ground that showing of the articles to the witness without having deposed as to the description or nature of the articles, would amount to putting leading question and such course cannot be adopted by the learned Public Prosecutor. Learned Sessions Judge after hearing both the sides, over ruled the objections and permitted the public Prosecutor to draw the attention of the witness to the articles and then to proceed further.

At that stage, the further examination-in-chief of the witness was deferred, since the learned defence counsel submitted that he would like to question the order passed by the Court over ruling his objections, before the High Court. Thereafter, this petition came to be presented on 22.07.2009 and this Court on 07.08.2009 granted interim stay of the further proceedings before the Trial Court and since then, for the last nearly four years, the trial has been stalled.

I have heard the learned counsel for the petitioners as well as the learned Government Pleader. Perused the records secured from the Trial Court.

The witness PW8 in examination-in-chief has stated that in his presence, the police officer conducted the spot mahazar at the spot and he has signed the said mahazar which had already been marked as Ex. P2. He identified his signature appearing on the mahazar. He further stated that at the time of spot panchanama, the blood stained mud, sample mud, jerkin, Hero Honda motor cycle and also iron rod were seized by the police. He further stated that he does not remember what other materials were taken at the time of panchanama. He identified the properties description of which had been stated in his examination-in-chief and those articles had already been marked as MOs. 9, 6, 7 and 5 respectively. At that stage, learned Public Prosecutor wanted to show some of the articles seized in the case to the witness.

I do see some force in the contention of the learned counsel for the petitioner that if learned Public Prosecutor choose to pick up any particular article said to have been seized in the case and wanted to show the same to the witness, it would amount to putting a leading question which is not permissible under law. However, if all the articles said to have been seized in the case are kept on the table in front of the witness and if the attention of the witness is drawn to whole lot of the articles seized and he is questioned as to whether he could identify any of the articles lying before the Court as the one seized under the panchanama, it can not be termed as leading question. Certainly the Public Prosecutor cannot pick and choose any particular articles and show the same to the witness. In this view of the matter, the petition is disposed of with a direction to the Court below to ensure that all the articles said to have been seized in the case, marked and unmarked, on the table and thereafter, the attention of the witness is drawn to whole lot of the articles so placed and if the witness identify any one of them, the Court may proceed to mark such of the articles.

Office is directed to send back the records to the Trial Court forthwith and the Trial Court shall proceed with the trial on day today basis and dispose of the matter expeditiously since the matter relates to the year 2005.