IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.1431 of 2009
Md. Akhtar @ Akhtar Hussain, son of Late Mubarak Hussain,
resident of village-Gaina, P.S.-Manigachhi, District- Darbhanga.
.........Petitioner
Versus
The State of Bihar
.........Opposite Party
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2. 21.10.2011 The accused petitioner has preferred this revision
application against the order dated 31.07.2009 passed by
the learned 2nd Additional Sessions Judge, Darbhanga in
S.T.No.271/2007 arising out of Manigachhi P.S. Case
No.30/2007 under Sections 302 and 448 of the I.P.C. by
which the petition filed on behalf of the prosecution under
Section 319 Cr.P.C. has been allowed and the petitioner
has been directed to appear before the court to face the
trial as an additional accused in this case.
The prosecution case, in brief, is that on 12.03.2007
Sobaida Khatoon (informant), the mother of the deceased
Sultana Khatoon gave a written statement to the officer-in-
charge of Manigachhi police station alleging therein that
on that day at about 6.30 A.M., the accused Md. Naushad
had entered into her house and tied the neck of her
daughter Sultana Khatoon aged about 18 years with a
plastic rope, which caused her death. The informant raised
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alarm, the co-villagers Md. Ahsan, Md. Ahmad and other
co-villagers male and female came there and saw the
occurrence. After the death of Sultana Khatoon, Naushad
hanged the dead body from the roof of her house. On the
statement of the informant, Manigachhi P.S. Case
No.30/2007 was instituted under Sections 302 and 448 of
the I.P.C., which was instituted against the sole accused
Md. Naushad. After investigation, the police submitted
charge-sheet against him. The case was committed to the
court of sessions for trial. After examination of 12
witnesses, a petition was filed under Section 319 of the
Cr.P.C. on behalf of the prosecution on 9.04.2009 with a
prayer to issue summon against the petitioner to face the
trial which has been allowed by the learned 2 nd Additional
Sessions Judge vide the impugned order.
The learned counsel for the petitioner submits that
the petitioner is neither named in the F.I.R. nor his name
has ever transpired during the entire investigation till the
submission of charge-sheet. As a matter of fact, out of 11
witnesses examined on behalf of the prosecution, P.W.1
Md. Ahsan, P.W.9 Akramul Haque and P.W.10 Sobaida
Khatoon are the close family members of the deceased,
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who have purposely and knowingly taken the name of the
petitioner as participant in the alleged occurrence by
making an improvement apart from the matter stated in the
F.I.R. only to use and humiliate the petitioner. The
petitioner used to live in Saudi Arbia (Jeddah) for doing
his job and on the last visit of his house, the prosecution
party has threatened to implicate him also in the present
case for which the petitioner had filed an Informatory
Petition before the learned Chief Judicial Magistrate on
31.07.2008 much prior to the examination of P.W.9 and
P.W.10. P.W.10 is the informant. P.W.9 is her husband
and P.W.1 is the brother of P.W.9. They are highly
interested having enmity with the petitioner and as such,
no reliance can be placed on their evidence.
He has further submitted that the 2nd Additional
Sessions Judge should have held that the prosecution has
filed the petition under Section 319 Cr.P.C. at a belated
stage, which could not be maintainable. Out of 12 charge-
sheet witnesses, 11 witnesses including the I.O. have been
examined and the trial is in the last phase. P.W.1 is not
even a charge-sheet witness nor his statement was
recorded by the police during investigation. The defence
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has not got any opportunity to cross-examine him rather
without any question being put to him by the defence side;
he was discharged and as such, due to non-cross-
examination of P.W.1, the case of the petitioner has been
highly prejudiced. The evidence of these witnesses is not
reliable and should have been disbelieved.
In support of his contention, he has referred the
following decisions:
(i) Md. Sajid Hussain @ Md. Sajeed Vs. State of
Bihar and Ors. reported in 2010 (4) BBCJ
312.
(ii) Lal Suraj @ Suraj Singh & Anr. Vs. State of
Jharkhand reported in (2009) 2 Supreme
Court Cases 696.
(iii) Michael Machado & Anr. Vs. Central Bureau
of Investigation & Anr. reported in (2000) 3
Supreme Court Cases 262.
The learned counsel for the State has submitted that
P.W.1 and P.W.10 are the eye witnesses of the occurrence,
who have fully supported the case that on the date of
occurrence Naushad and his father Akhtar Hussain
(petitioner) both had entered into courtyard of the
informant, Subiada Khatoon and secondly, both had tied
the neck of her daughter Sultana Khatoon and
subsequently, she died by tying the rope in her neck and
stress by them, besides the other witnesses P.W.9 Akramul
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Haque is the husband of the informant and he has
supported the case as an hearsay witness. The other
material witnesses are hostile. The name of the petitioner
never came in the charge-sheet nor his name was sent up
for trial. The prosecution has filed a petition for
summoning the petitioner after getting the evidence
against him. It cannot be said that this petitioner has been
filed at a belated stage. The decisions cited on behalf of
the petitioners are not applicable in the facts and
circumstances of this case.
After hearing the learned counsel for both the
parties and on perusal of the material on record, it appears
that prior to the examination of the informant (P.W.10)
except P.W.1 Md. Ahsan and P.W.9 Ekramun Hussain, all
the witnesses are hostile. Therefore, there was no occasion
to the prosecution to file the aforesaid petition at the early
stage. According to the P.W.1, he is the eye witness to the
occurrence. P.W.9 is the husband of the informant. He was
doing work at Mumbai. There was no male member in the
house of the informant. The informant and her daughter
were residing in the house. P.W.9 came from Mumbai and
the occurrence was informed to him by his wife.
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Accordingly, he has given the evidence before the court
and he is not an eye witness, but his evidence stands on the
evidence of P.W.10 and the evidence of these two
witnesses are consistent. P.W.1 is not a charge-sheet
witness, but he has supported the prosecution case as an
eye witness. P.W.11 (I.O.) has recovered a plastic thread
and a pair of sleeper from the house of the informant. The
witnesses examined by the I.O. during the investigation
have been declared hostile by the prosecution in trial.
Those witnesses have fully supported the prosecution case
before the police, but in the course of trial, they have
denied the main facts of the case. After considering all
these facts, the learned trial court has found that there is
prima facie material against the petitioner to summon him
to face the trial.
In the case of Lal Suraj @ Suraj Singh (supra), it
has been held that the power under Section 319 Cr.P.C. is
required to be exercised very sparingly. Before
summoning, the trial court must form an opinion on the
basis of evidence brought before it that a case has been
made out that such person could be tried together with the
other accused. In that case, the trial court has relied on the
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evidence of P.W.6 and P.W.7, who were not the eye
witnesses. P.W.6 was not an eye witness to the occurrence
and P.W.7 was only a hearsay witness. Therefore, it was
held that no evidence worth the name was brought on the
record to arrive at a satisfaction that there was a reasonable
prospect of conviction of the appellants. But in this case,
P.W.1 and P.W.10 are the eye witnesses to the occurrence
and P.W.9 is a hearsay witness, who has supported the
prosecution case as P.W.9 corroborating her evidence.
Therefore, this decision does not help the petitioner.
In the case of Md. Sajid Hussain @ Md. Sajeed
(Supra), it has been held that the discretion under Section
319 Cr.P.C. has to be exercised very sparingly with
caution and only when the concerned court is satisfied that
some offence has been committed by such person that
petitioner has also been dismissed on the ground that there
was material before the court for issuing summon under
Section 319 Cr.P.C. In this circumstance, this decision is
also not helpful to the petitioner.
In the case of Michael Machado & Anr. (Supra),
it has been held that 49 witnesses had been examined by
the Magistrate and none has made any allegation against
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the accused only the 3 remaining witnesses had made
reference about the role of the accused in the offence and
in that case it was held that the evidence was insufficient
to make out the case against the appellants and it was held
that there was no justification for proceeding against the
appellants by recommending entire trial afresh. In my
humble opinion, this decision is also not helpful to the
petitioner in the facts and circumstances stated above.
For the reasons stated above, I do not find any
ground to interfere with the impugned order. This petition
is dismissed.
V.K. Pandey ( Amaresh Kumar Lal, J.)