Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.71 of 2010 ====================================================== 1. Mithilesh Kumar Thakur S/O Late Jagdish Thakur R/O W.No.27 Supaul,P.S. & District -Supaul. Versus .... .... Petitioner 1.The State Of Bihar 2.Sanjeet Thakur S/O Upendra Thakur 3.Sanjiv Thakur S/O Gajendra Thakur 4.Rajiv Thakur S/O Gajendra Thakur 5.Gajendra Thakur S/O Late Suryanarain Thakur 6.Upendra Thakur S/O Deonandan Thakur, all are residents of W.N.26, Municipal Corporation,Supaul,P.S. & Dist.-Supaul. .... .... Opposite Parties. ====================================================== Appearance : For the Petitioner/s : Mr. Arun, Adv. For the O.P. No.2 to 6 : Mr. Amit Abhijat, Adv. For the State : Mr. Md. Arif, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 10 19-06-2013 Heard learned counsel for the petitioner, learned counsel for O.Ps. 2nd party as well as learned APP for the State. 2. Petitioner/informant has challenged the judgment of acquittal dated 09.11.2009 delivered by the Chief Judicial Magistrate, Supaul in G.R. No.1211/2008, Trial No. 347/2009 whereby and whereunder O.P. 2nd party were acquitted holding that prosecution has not been able to substantiate its case beyond all reasonable doubt. 3. Contention on behalf of the petitioner is that the learned trial court proceeded with the trial in haphazard manner without giving adequate time to the prosecution to adduce his
Legal Reasoning
Patna High Court CR. REV. No.71 of 2010 (10) dt.19-06-2013 2 evidence and on account thereof, neither informant nor his family members could be examined. Not only this, learned APP also did not care to pray before the court for issuance of summons against the official witnesses i.e., the doctor and the investigating authority. Therefore, it has been submitted that on account of carelessness on the part of the learned lower court, the prosecution had suffered a lot coupled with the conduct of the APP who had not cared to file a petition for issuance of summons against the investigating authority as well as doctor. It has further been submitted that from the L.C. record it is apparent that charge was framed on 28.01.2009 while the case of the prosecution was closed on 04.11.2009 on which date statement of O.P/accused were recorded under Section 313 Cr.P.C.. It has further been submitted that the learned lower court have proceeded with the trial illegally, hence, the judgment impugned is fit to be set aside. 3. It has further been submitted on behalf of the petitioner that counter case wherein petitioner was also shown as an accused including others was also going on before the same court and so if at all, evidence of petitioner was to be recorded in the instant case, then in that event, his attendance would have been procured and to support the same he had filed order-sheets of the counter case under Annexure-3. So submitted that it is wrong to Patna High Court CR. REV. No.71 of 2010 (10) dt.19-06-2013 3 say that there was no presence of the petitioner before the court on the relevant dates. 4. On the other hand, learned lawyer for the O.P. No.2 to 6 submitted that altogether six witnesses have been shown in the charge-sheet out of whom Amit Kumar Thakur and Jairam Choudhary had already been examined. Only the petitioner,
Legal Reasoning
Mithilesh Kumar Thakur and his wife Smt. Renuka Thakur being material witness were to be examined and for that summons had already been issued by the court concerned having personal service acknowledged by the petitioner himself. It has further been submitted that when the petitioner including his wife failed to turn up before the court for their evidence, at the request of learned APP warrant of arrest non bailable was issued against them, even then petitioner gave deaf ear. It has further been submitted that when counter case wherein petitioner stood as one of the accused was pending before the same court and when dates of both the cases were same and similar, then in that event, non presence of the petitioner in dock as a witness happens to be an intentional one. Consequent thereupon, the learned trial court rightly closed the case and proceeded with the trial ultimately concluding with the judgment impugned. 5. On the other learned APP fairly submitted that Patna High Court CR. REV. No.71 of 2010 (10) dt.19-06-2013 4 prosecution would have taken proper steps for examination of doctor and I.O. wherein some slackness is apparent but in the facts and circumstances of the case as well as taking into account the nature of evidence even their examination would have improved the prosecution case for want of non examination of informant as well as his wife, the victim. It has further been submitted that judgment in its present form appears to be fully based upon the material available on the record, as such, needs no interference. 6. The scope of revisional jurisdiction is to see the correctness, legality and propriety of the finding, sentence or order as happens to be the spirit of Section 397 of the Cr.P.C. For the purpose of adjudicating upon the finding recorded by the learned trial court, when the evidence of both the witnesses have been gone through, it is apparent that none of the witnesses should be taken as an eyewitness to occurrence. So far PW-1 is concerned, during examination-in-chief he had claimed to be an eyewitness but during cross-examination at para-8 he had clearly stated that he had seen one almirah in a room having broken lock. He had found the clothes scattered. He had not seen any other articles. None of the family members disclosed anything but again said that the mistress of the house had disclosed regarding chain. He had further stated that attaché case was not missing as the same was Patna High Court CR. REV. No.71 of 2010 (10) dt.19-06-2013 5 not kept inside almirah. Ornaments were kept in the locker. He is unable to say as to how many pieces of Sari, blouse were there. He can not say its colour etc. In likewise manner, PW-2 had also stated posing himself to be an eyewitness to occurrence in examination-in-chief. He had been inconsistent with PW-1 who stated in para-4 that he had no talk with the wife of Mithilesh. She had not disclosed with regard to removing of the articles. He was informed regarding the event by Mithilesh. At para-7 of his cross- examination he had clearly stated that the names of accused persons were disclosed by Mithilesh. 7. From the record it is apparent that there happens to be personal service of summon over informant (petitioner). From Annexure-3, the petitioner himself exposed his conduct. In spite of having counter case pending in the same court having same date fixed at each occasion must have acknowledged the petitioner regarding stage of the case in the background of the fact that appearance of petitioner was already on record through Vakalatnama on 05.12.2008, had filed protest petition and then his conduct in not getting his presence as a witness in the case in spite of personal service of summon is suggestive of the fact that he was anyhow interested to linger the proceeding. From the record it is also apparent that there happens to be slackness in not getting the Patna High Court CR. REV. No.71 of 2010 (10) dt.19-06-2013 6 summon issued against the doctor as well as the I.O. which the learned lower court ought to have taken recourse. This Court while exercising revisional power would have taken the aforesaid laches seriously, had not been gone through the nature of evidence so placed on record through PWs-1 and 2 which, even in the event of examination of the doctor and the I.O. are not going to change the ultimate result. 8. Thus, the revision is found to be devoid of merit and is, accordingly, dismissed. perwez (Aditya Kumar Trivedi, J)