IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.642 of 2011
1. Sajjan Mandal.
2. Pappu Mandal.
3. Ram Babu Mandal
(All sons of Parmeshwar Mandal)
4. Raju Mandal.
5. Deepak Mandal.
(Both sons of Sajjan Mandal, resident of Mohalla-Laxmi
Sagar, near Gas Godown, P.S.-L.N.M.U. Campus,
District- Darbhanga).
...............Petitioner
Versus
1. The State Of Bihar.
2. Arun Sah, son of Late Parmeshwar Sah, resident of
Mohalla-Laxmi Sagar, near Gas Godown, P.S.-L.N.M.U.
Campus, District- Darbhanga.
.......Opposite Parties
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3. 27.09.2011 The accused-petitioners have preferred this revision
application against the order dated 30.04.2011 passed by the
learned 4th Additional Sessions Judge, Darbhanga in Cr.
Appeal No.22/10 by which the judgment and order dated
4.11.2009 passed by the learned Judicial Magistrate, Ist
Class, Darbhanga in Tr.No.1833/09, G.R.No.1861 of 2005
has been set aside and the case has been sent back to the
learned trial court with direction to complete the
examination of witnesses preferably within three months.
The prosecution case, in brief, is that on 12.09.2005 at
about 9.00 A.M., all the accused petitioners were forcibly
taking possession of the land of the informant by making
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fencing of the land of the informant. When it was protested,
all of them started attacking the informant with various arms
causing injuries to the informant. When his son came to
rescue, he was also attacked by the accused. Both of them
were injured. The accused threatened the informant and his
son not to go to the police station, otherwise, they would be
killed.
It has further been alleged that the accused used to
take various articles from the shop of the informant without
paying price for the same and they used to threaten the
informant to kill him, if he asked for the price of the goods.
The injury report of the informant and his son are also on the
record.
On the written informant of the informant, opposite
party no.2, Vishwavidyalaya (Darbhanga) P.S. Case
No.114/05 was instituted against the accused. After the
investigation, charge-sheet was submitted. Cognizance was
taken. After the trial, the accused petitioners were acquitted
for the offences punishable under Sections 323, 341, 504 and
506 of the I.P.C. The accused nos. 2 to 4 were also facing
additional charge under Section 324 of the I.P.C., but they
have also been acquitted vide judgment and order dated
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4.11.2009 passed by the learned Judicial Magistrate in Tr.
No.1833/09, G.R. No.1861/2005. The information filed Cr.
Rev.No.26/10 against the judgment dated 4.11.2009 passed
by the learned Magistrate, but on the prayer of the informant,
the Cr. Rev. No.26/10 was permitted to be converted as Cr.
Appeal No.22/10 by the learned Sessions Judge vide order
dated 16.09.2010; and the appeal was transferred to the court
of learned 4th Additional Sessions Judge, Darbhanga. After
hearing both the parties, the impugned order has been
passed.
Heard Mr. Jagnnath Singh, the learned counsel for the
petitioners and Mr. Ajay Kumar Jha, the learned counsel for
the State.
The main contention of the learned counsel for the
petitioners is that the learned appellate court has failed to
appreciate that if on scrutiny of the statement of the
witnesses, no case is made out rather out of six witnesses,
four witnesses have been declared hostile by the prosecution
itself, the rest witnesses the informant and his two sons even
if examined cannot be said to be reliable witnesses as they
are interested witnesses and their testimony was required to
be scrutinized with all care and caution. It is a duty of the
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prosecution to establish his case beyond reasonable doubt
and so far the evidence of fifth witnesses is concerned, his
testimony has not been corroborated by any independent
witness and the sixth witness did not appear for his cross-
examination even after giving ample opportunity to him and
therefore, the only conclusion with the trial court was to
record finding of acquittal and not conviction.
The learned counsel for the petitioners has further
submitted that the appellate court has power to take
additional evidence in a suitable case, but its discretion
should not be exercised to fill up gaps or lacuna in the
prosecution evidence. In support of his contention, he has
referred to a decision in the case of Bir Singh & Ors.
Versus State of Uttar Praesh reported in AIR 1978 SC
59.
The learned counsel for the petitioners has further
submitted that the prosecution had knowledge that the
prosecution evidence was going on, but he did not prefer to
adduce more evidence. He has further submitted that P.W.6
Sonu Sah had filed attendance for the cross-examination on
24.07.2009 as witness, but he did not appear in the court. On
20.08.2009, it was directed by the learned trial court to the
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prosecution to produce the witness, failing which
prosecution evidence will be closed and the case was
adjourned to 6.10.2009, but on that date, the witness was not
produced and the prosecution witness was closed and the
case was adjourned to 27.10.2009 for the statement of the
accused under Section 313 Cr.P.C. On 27.10.2009, the
statement of the accused were recorded and opportunity was
given to the accused for producing their evidence, which was
closed at their instance and the case was fixed on 29.10.2009
for argument. On 29.10.2009, the arguments of both the
parties were heard and the case was fixed for judgment on
4.11.2009 and accordingly, on that date, the judgment was
delivered holding the accused innocent.
It has further been submitted by the learned counsel
for the petitioners that the appeal was time barred and it was
not even admitted, as such, it should not have been
transferred to the court of Additional Sessions Judge for
hearing. Since the delay had not been condoned, as such, the
appeal should have been dismissed on limitation itself.
The learned counsel for the State has submitted that
only five witnesses have been examined and cross-
examined. P.W.6 Sonu Kumar Sah is also one of the injured,
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he has been examined, but he has not been cross-examined
and the cross-examination was deferred at the instance of the
accused. No other witnesses including the informant, I.O.
and the Doctor have been examined. P.Ws. I to 4 are hostile
witnesses. P.W. 6 has not turned up for his cross-
examination. Only P.W.5 has supported the prosecution case
and his statement need to be appreciated for the just decision
of the case. After considering all these facts, the learned
appellate court has set aside the trial court’s judgment and
has remanded the case for further trial. No interference in the
impugned order is required by this Court.
After hearing the learned counsel for the petitioners
and learned counsel for the State, it appears that the main
witnesses have not been examined by the learned trial court.
The informant is also the victim of the occurrence. P.W.6
Sonu Kumar Sah is also one of the injured, he has been
examined, but he has not been cross-examined and the cross-
examination was deferred at the instance of the accused and
thereafter he did not turn up for cross-examination. The I.O.
and the Doctor have also not been examined. It is settled
principle of law that criminal trial is discovery, vindication
and establishment of truth. Trial should be a search for a
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truth and not a bout over technicalities. Presiding Judge must
cease to be a spectator and a mere recording machine. He
must become a participant in the trial evincing intelligence,
active interest eliciting all relevant materials necessary for
reaching the correct conclusion to find out the truth and
administer justice with fairness and impartiality both to the
parties and to the community.
In this connection, reference may be made to a
decision in the case of Zahira Habibulla H Sheikh and
anr. Vs. State of Gujarat and others reported in (2004) 4
Supreme Court Cases 158.
In the case, it appears that against the judgment and
order dated 4.11.2009 passed by the learned Judicial
Magistrate Ist Class, the informant preferred Cr. Rev.
No.26/10 it was permitted to be converted into Cr. Appeal
No.22/10 vide order dated 16.09.2010 passed by the learned
Sessions Judge. Later on, the case was transferred to the
court of 4th Additional Sessions Judge. As such, the learned
Additional Sessions Judge has rightly entertained the Cr.
Appeal and has decided it on merit vide the impugned order.
The primary duty of the court is to find the truth as it
has been held in the case of Zahira Habibulla H Sheikh
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(Supra) by the Hon’ble Supreme Court. The learned
appellate court has found that the learned trial court has not
taken proper and legal steps for the examination of the vital
witnesses, who have not been examined and as such, the
learned appellate court has rightly set aside the impugned
judgment and order of acquittal and has remitted the case to
the learned trial court for further examination of the
important witnesses and pass orders in accordance with law.
In Bir Singh case (Supra), one witness Yaz Hussain
was examined before the High Court and it was held that
that witness was not reliable and it was held that the High
Court was not justified in drawing an inference in order to
demolish the positive and categorical statement of P.W.5
Umesh Chandra Verma. This decision does not help the
accused petitioners.
Considering the facts and circumstances 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.)