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Patna High Court – Orders
Idrish Dewan vs State Of Bihar &Amp; Ors on 6 August, 2010
                   IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CR. REV. No.1464 of 2008
                   IDRISH DEWAN son of Late Hamid Dewan, resident of village
                   khajuria Darwa P.S.Sikarpur, District West Champaran.
                                                  ...PETITIONER
                            Versus
                   1. STATE OF BIHAR
                   2. BHOLA MAHTO SON OF GAURI MAHTO
                   3. SUDARSHAN MAHTO
                   4. MAKSUDAN MAHTO, all are residents of village Khajuria
                      Darwa P.S. Sikarpur, District West Champaran.
                   5. SHATRUDHAN MAHTO son-in-law of Bhola Mahto, resident
                      of village Kachorba P.S. Bhelahi District East Champaran.
                                                ...OPPOSITE PARTIES

                       For the Petitioner : Mr.Bimlesh Kumar Pandey
                       For opposite party: Mr.Ram Keshri Prasad
                       For the State       : Mr.J.Upadhyay, APP
                                        -----------

02. 06.08.2010 Heard counsel for the parties.

Petitioner who is the informant of the case raises a

grievance with respect to the judgment and order dated 13th

November,2008 passed in Cr. Appeal No.168/07, preferred by o.p.nos 2

to 5 herein. An occurrence is said to have taken place on 04.03.1999 in

which the informant(P.W.3), his wife and son received injuries. This

occurrence had taken place due to land disputes. The informant

subsequently also lodged a complaint on 09.03.1999. It appears that on

the strength of earlier statement made before the police, a report was

submitted and the same was treated to be the FIR. In order to prove the

charge(s) punishable under section 323 IPC., the prosecution examined

three witnesses at the trial. Learned trial court on a consideration of

materials placed on record found and held that charge(s) punishable

under section 323 IPC stood proved and accordingly they were released

under the Probation of Offenders Act in stead of awarding him
-2-

punishment. Being aggrieved by the aforesaid order, the convicts

(o.p.no.2 to 5) herein preferred the aforesaid appeal. Learned appellate

court on a re-consideration of materials available on record, has fond

that relevant witnesses were not examined by the prosecution. The

alleged injured wife of the informant as well as his daughter were not

produced at the trial to support the case. Learned trial court has also

noticed that the police reports which formed the basis of the

prosecution were not brought on record by the prosecution. The same

was brought on record by the defence.

In the backdrop of these facts/circumstances, emanating

from the records, learned lower appellate court has observed as under in

paragraph 9 of the judgment which reads thus:

“9. Without any reason prosecution has neither
examined one of the victim of this case Ainul Bano
wife of the informant nor Akalia Khatoon, daughter of
the informant nor the Doctor and nor the police officer
who enquired into the case. Even in this case police
started enquiry without submitted the report, received
from Idrish Dewan in the court of C.J.M. Bettiah and
started investigation without permission of the court,
which is mandatory according to the provision of
section 155(2) of Cr.P.C.”

The conclusion/findings arrived at by the learned lower

appellate court, in my view, cannot be said to be patently illegal and/or

perverse meriting any interference.

There is no merit in this application which is

accordingly dismissed.

hr                                ( Kishore K. Mandal )
 

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