Ram Swaroop Mahto v. Sudama Mahto — 1987 DIGILAW 173 (PAT)

JUDGMENT Ram Naresh Thakur, J. 1. This revision application has been directed against the order of acquittal passed by the 6th Additional Sessions Judge, Gaya, in Sessions Trial No. 222 of 1972/30 of 1982. 2. In the morning of 19th March, 1971, at about 8 to 9 A.M. the informant-petitioner, it is alleged, found the members of the opposite party, namely, opposite party nos. 1 to 4, uprooting the gram crop from his field. The petitioner objected to it whereupon they took out hidden arms and assaulted him causing several injuries on his person. The informant-petitioner alleged that opposite party Sudama Mahto gave one bhala blow and the others assaulted him with lathi. A regular case was instituted by the informant-petitioner, which on investigation, ended in submission of chargesheet and, ultimately, the members of the opposite-party were put on trial. Opposite party No.1 Sudama Mahto was charged for an offence under section 307 of the Indian Penal Code for attempting to cause the death of the informant by giving a bhala blow. He was further charged for an offence under section 379 of the Indian Penal Code for committing theft of gram crop of the informant. The other three members of the opposite party were charged under sections 307/34 and 379/34 of the Indian Penal Code. 3. In course of trial the prosecution examined nine witnesses in support of its case. The accused persons i.e. opposite party nos.1 to 4 pleaded their innocence, denied the occurrence and claimed false implication on account of enmity. On consideration of the entire evidence on the record, both oral and documentary, the learned trying court came to the conclusion that the prosecution has failed to prove the charges levelled against the members of the opposite party beyond all reasonable doubt and accordingly, acquitted them. Hence this application, by the informant petitioner. 4. Learned counsel appearing for the petitioner has challenged the order of acquittal on the following grounds:- (i) The learned trying court has committed serious error of law in not treating the evidence of P.Ws. 2 and 3, recorded in the committing court, as substantive piece of evidence. (ii) The learned trying court was wrong in not considering the injury report in the absence of the evidence of the doctor. (iii) The learned trying court came to a wrong conclusion that the accused-opposite party had bonafide land dispute. 5. 2 and 3, recorded in the committing court, as substantive piece of evidence. (ii) The learned trying court was wrong in not considering the injury report in the absence of the evidence of the doctor. (iii) The learned trying court came to a wrong conclusion that the accused-opposite party had bonafide land dispute. 5. From the revision application itself it would appear that the present case was committed to the court of session for trial in the year 1972, much before the new Code of Criminal Procedure (herein after referred to as 'the Code') came into existence. The Code came into force with effect from 1st April, 1974, when the trial of the present case was pending before the sessions court. Therefore, it has been rightly submitted by learned counsel for the petitioner that the that of this case should have been conducted in accordance with the procedure laid down in the Code of Criminal Procedure, 1898 (for short, hereafter called the 'old Code'). According to the provisions in the old Code witnesses were examined during the commitment proceedings. If during session trial any witness was declared hostile or he resiled from his earlier statement made during commitment enquiry stage and his attention was drawn towards his previous statement the statement of that witness recorded in the committing court used to be tendered in evidence under section 288 of the old Code with the permission of the court and in that situation such statement of that witness used to be treated as substantive evidence. Therefore, in the present case when P.Ws. 2 and 3 were cross-examined by the Public Prosecutor with the permission of the court in respect of their earlier statement made before the committing court, their statement made before the committing court in presence of the accused and duly tendered with the permission of the court could be treated as substantive evidence. Therefore, in the present case when P.Ws. 2 and 3 were cross-examined by the Public Prosecutor with the permission of the court in respect of their earlier statement made before the committing court, their statement made before the committing court in presence of the accused and duly tendered with the permission of the court could be treated as substantive evidence. Section 288 of the old Code reads as follows ; "288-The evidence of a witness duly recorded in the presence of the accused under Chapter XVIII may in the discretion of the presiding Judge, if such witness is produced and examined be treated as evidence in the case for all purposes subject to the provisions of the Indian Evidence Act, 1872." Thus, if the conditions as laid down in section 288 of the old Code were fulfilled, the evidence of such witness could be treated as evidence in the case subject to the provisions of the Indian Evidence Act. In the present case the commitment proceeding was conducted in the presence of the accused, attention of P.Ws. 2 and 3 was drawn towards their statements made before the committing court at the sessions trial, but, as it appears, the statements of P.Ws. 2 and 3 recorded in the committing court, could not be tendered in evidence by the prosecution after obtaining the permission of the trying court. Therefore, one condition of section 288 of the old Code, i.e. permission of the court could not be taken for treating the statements of these two witnesses in the committing court as legal evidence in the trial court, was not fulfilled. 6. Learned counsel appearing for the petitioner has submitted that the omission to take permission of the court for treating the statements of P.Ws. 2 and 3, recorded in the committing court as legal evidence in the trial court, was simply a technical mistake, and in the interest of justice, those statements should have been treated as substantive evidence even though same of the provisions of section 288 of the old Code were not complied with. No doubt the trying court, if it would have been too alert, would have complied with the provisions of section 288 and would have taken into consideration the statements of P.Ws. No doubt the trying court, if it would have been too alert, would have complied with the provisions of section 288 and would have taken into consideration the statements of P.Ws. 2 and 3 as recorded in the committing court; but after taking into consideration the entire facts, I do not think it proper to set aside the order of acquittal on this ground at this stage. 7. It is clear that the occurrence is alleged to have taken place in March, 1971, and this revision application is being disposed of in the year 1987, after about 16 years. Leaned counsel appearing for the petitioner has vehemently argued that after setting aside the judgment of acquittal, the case should be remanded to the trying court for fresh decision. I do not think it proper that for the aforesaid mistake the order of acquittal should be set aside and the case should be remanded back for fresh decision after sixteen years of the occurrence, for, it will serve no purpose. Punishment in a case is awarded with dual purposes; firstly, that the accused must feel that he has been convicted for the crime he has committed so that in future he may not repeat the offence; and, secondly, the order of conviction and sentence will have an impact on the society that offenders are suitably punished. In the present case, I think none of the purposes will be served. The society, after a lapse of sixteen years of the occurrence must have forgotten about the facts of the case and it is also not known, if the witnesses and/or the accused persons are still alive. On the date of judgment of the trial court respondent Ramashray Mahto was found to be 75 years old and respondent Govind Mahto was found aged 70 years. Therefore, it will have no desired impact on the respondents as well. Apart from this, there are other infirmities also which support the order of acquittal. 8. In the trying court P.W. 2 stated that he did not know anything about the occurrence and then he was cross examined by the Public Prosecutor. In cross-examination by the Public Prosecutor he stated that he did not remember what he had stated before the investigating officer or before the committing court. Similar is the statement of P.W. 3 in the trying court. This conduct and behaviour of P.Ws. In cross-examination by the Public Prosecutor he stated that he did not remember what he had stated before the investigating officer or before the committing court. Similar is the statement of P.W. 3 in the trying court. This conduct and behaviour of P.Ws. 2 and 3 at least go to prove that they are not reliable witnesses and are also indicative of the fact that they can change their statement at any time and at any place to suit their desire. If a witness can change his statement during trial and can give different versions where is the guarantee that whatever he stated before the committing court was true? Therefore, P.Ws. 2 and 3 share the same fate. 9. The doctor who had examined the informant-petitioner could out be examined during the trial. However, his report has been exhibited as Exhibit 4. For consideration about the nature of the injuries, the evidence of the doctor was essential, but that was not done. The injury report (Exhibit 4) was not brought on the record under section 294 of the Code. It has been proved by P.W. 6, who is a Pleader's clerk. From the injury report (Exhibit 4) it would appear that most of the injuries were on hands and legs. There is nothing to show that repeated blows were given on vital parts of the body. In that view of the matter, the trying court was quite justified in holding that an offence under section 307 of the Indian Penal Code had not been made out because there is no material to come to the conclusion that respondent Sudama had any intention to kill the informant. 10. The investigating officer is an important witness in a criminal trial and therefore, his evidence was essential. For the reasons best known to the prosecution, the investigating officer did not appear before the trial court in spite of several adjournments given to the prosecution for his evidence. It has to be remembered that the trial concluded in the present case in the year 1983 when the occurrence is alleged to have taken place in the year 1971. From the lower court's records it appears that charges were framed against the respondents on 13th July, 1982 and the prosecution case was closed on 24th May, 1983. For how much time the court would have waited for the evidence of the investigating officer? From the lower court's records it appears that charges were framed against the respondents on 13th July, 1982 and the prosecution case was closed on 24th May, 1983. For how much time the court would have waited for the evidence of the investigating officer? The order sheet of the Court below also shows that several chances were given to the prosecution to produce the investigating officer but still it failed to produce him. Therefore, I do not find that the learned trying court committed any error in closing the prosecution case on 24th May, 1983. 11. P.W. 4 the informant-petitioner admitted in his evidence that rent receipts granted by the ex-landlords in respect of the land in dispute and with him but those receipts have not been brought on the record. He has admitted that he has no receipt granted by the State of Bihar. Documents filed by the parties in respect of the land in dispute have been well considered by the trying court. The rent receipts produced by the respondents in the trying court are Exhibits A to A/23. After considering the documents and the oral evidence, the finding of the trying court that there was land dispute between the parties cannot be said to be wrong. 12. No doubt, much has been said by the learned counsel for the petitioner that only on the ground that sixteen years have passed when the occurrence took place, the culprits should not be left free if the evidence on the record proves the guilt of the respondents. As discussed above, from the evidence on the record, it cannot be said that the prosecution had succeeded in proving the charges against the respondents beyond all reasonable doubt. In this case, in the trying' court, only, P.W. 4, being the informant, has supported the prosecution case. P. Ws. 1, 5, 6, 7, 8 and 9 are formal witnesses. They are not on the point of occurrence. P.Ws.2 and 3 did not support the prosecution case in the trying court and can not be said to be reliable witnesses for the reasons stated above. 13 After considering the entire facts and the circumstances appearing in the case, I do not find any good ground to interfere with the order of acquittal of the respondents, passed by the trying court. The revision application is, accordingly, dismissed.