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
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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 )
