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2003 DIGILAW 1117 (PAT)

Jaikant Rai v. Ganeshi Rai Alias Ganesh Rai

2003-10-29

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kumar Prasad, J. 1. This revision application has been filed to set aside the order dated 20-3-2002 passed by 4th Additional District and Sessions Judge, Smastipur in Sessions Trial No. 57 of 1994,whereby opposite party Nos. 1 to 4 have been acquitted of all the charges leavelled against them. 2. Facts necessary for decision of the present case are that on the basis of the report given by the petitioner before the Officer-in-Charge of police station Vidyapati Nagar, district Smastipur, Vidyapati Nagar P.S. Case No. 93 of 1992 (GR No. 379 of 1992) was registered under Secs. 341, 323, 324, 447, 427, 379 and 307/34 of the Indian Penal Code, 1860 . Police after investigation submitted charge-sheet against the accused persons. The learned Magistrate took cognizance of the offence and committed the case to the Court of Session for trial. According to the prosecution when the accused persons were removing the hut same was objected to by the father of the petitioner at which one of the accused persons gave order to accused Suresh Rai to kill the father of the informant. Thereafter, according to the informant Suresh Rai gave Pharsa blow on the father of the informant as a result of which his father fell down. Prosecution has further alleged that accused Prahaladi Rai also hurled a Pharsa blow on the left hand of his father. According to the prosecution when informant and his brother-in-law came to rescue him they were also assaulted by sickle on their left hand and back and when his mother Urmila came to rescue them she was also assaulted by the accused Ganeshi Rai and Lukshaman Rai. Thereafter, the accused persons are alleged to have fled away with five bundles of mustard from the door of the informant. 3. After the case was committed to the Court of Session the learned Judge framed charge under Secs. 148, 324, 326, 307, 447 and 504 against accused Suresh Rai and Maheswar Rai and charges under Secs. 147, 447, 323 and 379 were framed against accused Ganeshi Rai and Luxman Rai. 3. After the case was committed to the Court of Session the learned Judge framed charge under Secs. 148, 324, 326, 307, 447 and 504 against accused Suresh Rai and Maheswar Rai and charges under Secs. 147, 447, 323 and 379 were framed against accused Ganeshi Rai and Luxman Rai. On the said date the learned Judge directed the office of issue summons to the informant and other witnesses, in the margin of the order dated 7-3-2001, it has been stated that the summons have been issued to the informant and the witnesses but there is nothing on record to suggest that in fact summons were ever served on the informant or other witnesses. From the order of the learned Judge dated 19-10-2001 it seems that he had directed the Public Prosecutor to produce the witnesses and for that purpose adjourned the case to 9-12-2001. On 6-12-2001 no witness was produced and the accused persons prayed for closing the prosecution evidence but the learned Judge gave opportunity to the Public Prosecutor to bring the witness for recording the evidence and for that purpose adjourned the case to 7-1-2002. On 7-1-2002 no witness was examined and the case was adjourned to 25-1-2002 with a direction to the Public Prosecutor to bring witnesses for evidence on the said date. Such an opportunity was given to the Public Prosecution again on 25-1-2002 and 18-2-2002. When the case was taken upon 15-3-2002 argument on the question of closing the prosecution evidence was heard but the learned judge adjourned the cases to 19-3-200 and gave test opportunity to the Public Prosecutor to bring the prosecution evidence. Ultimately, no witness was examined on 19-3-2002 and the learned Judge closed the prosecution evidence, heard the argument and posted the case for judgment on 20-3-2002 and acquitted the accused persons. 4. Mr. Prashant Vedasen appearing on behalf of the petitioner submits that when the witnesses were not appearing before the learned Judge, he ought to have resorted to coercive process to procure the attendance of the witnesses and having failed to do so the trial has been vitiated, hence, it is a fit case in which the order of acquittal deserves to be set aside and the matter, remitted back to the learned Judge to proceed with the trial in accordance with law. Mr. Mr. Indu Bhushan Prasad appearing on behalf of the opposite party however, submits that this is not a fit case in which revisional jurisdiction is fit to be exercised. 5. Having considered the rival submission I find substance in the submission of Mr. Vedasen that the learned Judge before closing the evidence of the prosecution ought to have taken steps for procuring the evidence of the prosecution witness and from the record it does not appear that any such step was taken by him. Order sheet of the learned Judge dated 14-6-2000 does show that he had directed for issuance of summons against the informant and the witnesses but it seems that the said order not carried out immediately. From the note in the margin of the order dated 7-3-2001 it seems that the summons were issued but whether the same were served or not is not borne out from the record. Thus, the learned Judge was proceeded with the trial in a causal manner. 6. In normal circumstances I would have set aside the order of acquittal and remitted the matter back for trial afresh but in the present case I am not inclined to charter the said path. The occurrence had taken place as back as on 10-10-1992, prosecution did not produce any evidence for long ten years and it is only on 19-3-2002 that the learned Judge had closed the prosecution evidence and posted the case for judgment on 20-3-2002 and ultimately, acquitted the accused persons on the said date. In these long years neither the informant nor the witnesses shoed any interest in the prosecution. In my opinion interfering with the order of acquittal at such a distance of time, instead of advancing the course of justice shall deflect the same. Hence, I am not inclined to interfere with the order of acquittal. 7. In the result, I do not find my merit in the application and it is dismissed accordingly.