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2007 DIGILAW 1796 (PAT)

State Of Bihar v. Md. Nayeem @ Nayeem

2007-11-22

SADANAND MUKHERJEE

body2007
Judgment 1. Earlier in Cr. Misc. No. 49288 of 2006 Md. Nayeem @ Nayeem was granted bail considering the material that majority of the witnesses have been declared hostile. However, while considering the bail application of Raju @ Md. Hamid Ansari in Cr. Misc. No. 15745 of 2007 vide order dated 10.4.2007 while granting him bail, it came to the notice that the informant was examined and he had not gone hostile and he had also taken the name of Md. Nayeem @ Nayeem as an assailant. 2. Learned Addl. P.P. indicated that there is suppression of fact in this Court. Show-cause was furnished by Opposite Party Md. Nayeem in which it is indicated that since the informant was not fully examined on behalf of the other co-accused persons and it was not completed cross-examination, therefore, there was no need to attach the incomplete statement of informant (P.W. 10) and that is why this fact was not brought to the notice of the lawyer and the aforesaid fact was not mentioned in the bail application of petitioner, Opposite Party here. It is also indicated that the pairvikar Md. Yunus was an illiterate person and hence he did not disclose regarding examination of the informant to his conducting learned counsel in the Patna High Court Sri Manoj Kumar No. 5 and it is not deliberate concealment of fact. 3. In this connection it has been submitted that it is not a case of suppression of fact. 4. It appears from perusal of Cr. Misc. No. 49288 of 2006 that the bail application was filed with respect to opposite party, Md. Nayeem, on 20.11.2006 and he was granted bail on 3.1.2007. The copies of the statement of P.Ws. 1 and 9 have been annexed therein. It has been stated in paragraphs 9 and 10 of the said bail application that out of 9, 8 witnesses have been declared hostile from the side of the prosecution. Regarding P.W. 9 it was stated that P.W. 9 was produced on 28.8.2006 and thereafter no any witness was produced from the side of the prosecution. Paragraphs 9 and 10 of Cr. Misc. No. 49288 of 2006, Md. Nayeem @ Nayeem vs. State of Bihar, are as follows: "9. Regarding P.W. 9 it was stated that P.W. 9 was produced on 28.8.2006 and thereafter no any witness was produced from the side of the prosecution. Paragraphs 9 and 10 of Cr. Misc. No. 49288 of 2006, Md. Nayeem @ Nayeem vs. State of Bihar, are as follows: "9. That in tffis case in the chargesheet total witnesses of the prosecutrix are 13 in number and out of 13, 9 witnesses were produced from the side of prosecutrix but none of them have supported the version of the informant and also not disclosed the name of the petitioner and the prosecution has denied to prove the case at the stage out of 9 witnesses, 8 witnesses were declared hostile from the side of the prosecution. (Copies of the statement of P.Ws. 1 to 9 are annexed herewith and marked as Annexure-3 to the petition). 10. That last witness P.W. 9 was produced from the side of prosecutrix on 28.8.2006 and after that no any witness has been produced from the side of the prosecution and the petitioner is continuously languishing behind the bar since 28.7.05 and the case has not been closed as yet." 5. However, it has been brought to the notice in Cr. Misc. No. 15745 of 2007, Raju @ Md. Hamid Ansari, that on 23.9.2006 the informant was examined and he had not gone hostile and he had also taken the name of Md. Nayeem @ Nayeem as an assailant. The present bail application of Md. Nayeem @ Nayeem was disposed of on 3.1.2007 and the fact that on 23.9.2006 the informant was examined had not been brought to the notice of this Court. The plea has been taken in the show-cause that a report was called for from the trial court by this Court and in the report it has been mentioned that the informant has been examined and rest witnesses are yet to be examined and after perusal of the report of the learned trial Court the bail order dated 3.1.2007 was passed by this Court and after the submission of the report by the learned trial Court, the bail matter was heard and it was in the notice of this Court that the informant was being continuously cross-examined. 6. From perusal of the record of Md. 6. From perusal of the record of Md. Nayeem @ Nayeem as stated above that in the show-cause furnished on behalf of Opposite Party there is no mention as to why the deposition of the informant even if incomplete, according to the version, did not find place in the bail application whereas if the version in the show-cause is taken to be true that at the time of bail application the cross-examination was not complete, in the bail application of Opposite Party, Md. Nayeem, it should have mentioned the content of the aforesaid deposition and there should not have been any suppression. 7. However, to verify the real fact of suppression of fact, the court below is directed to send a photocopy of the deposition of the informant and the same should be sent within a period of two weeks. 8. Put up this matter after two weeks. 9. Let a copy of this order be sent through fax at the cost of the State.