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2007 DIGILAW 322 (PAT)

Vijay Kumar Pandey v. State Of Bihar

2007-02-12

SHYAM KISHORE SHARMA

body2007
Judgment 1. Heard the parties. 2. This application has been preferred by the informant of Charpokhari P.S. case No.9 of 1994 registered under Sections 302/34 of the Indian Penal Code by which the opposite parties no. 2 to 4 were acquitted vide order dated 5.9.2005 in ST. No. 84 of 1995. 3. The accused persons are named in the FIR After the investigation charge sheet was submitted against named accused and they were charged on 5.1.2004 and on 18.3.2004 summons was ordered to be issued. 4. On behalf of the petitioner it has been submitted that the Court has hurriedly closed the prosecution evidence despite the fact that there was no delay or laches on behalf of the informant or on behalf of the State rather the accused persons were delaying the trial by filing time petitions and taking time. The witnesses were present but on many occasions the Presiding Officer was on leave. The Court has not afforded proper opportunity to the prosecution and without following the procedure prescribed under the Code the Case was closed. 5. This submission has been countered by the learned counsel for the opposite parties who submits that all the procedures were followed and when the State was not producing the witnesses then the Court had no option but to close the prosecution evidence and after observance of all paraphemalias the accused persons were acquitted. 6. Some dates are relevant. The occurrence is of 4.2.1994 and the FIR was received in the Court on 5.2.1994. The accused persons were granted bail in the year 1994 itself. Thereafter the case remained pending for supply of police papers As on most of the dates all accused persons were not present so that the charge was also not framed. The accused persons have absented on some dates so their bail bonds were cancelled and later on they were appeared and released on bail. After a long lapse, charge was framed on 19.1.2004 and summons was issued on 21.1.2004. There is order of Court dated 18.3.2004 that summons is to be issued to non official witnesses. It appears that the order was not complied as there is nothing in the margin of the order sheet that the order dated 18.3.2004 was complied. Subsequently a witness Narayani Devi who is the widow of deceased appeared on 12.6.2004 she was partly cross examined and the case was adjourned. It appears that the order was not complied as there is nothing in the margin of the order sheet that the order dated 18.3.2004 was complied. Subsequently a witness Narayani Devi who is the widow of deceased appeared on 12.6.2004 she was partly cross examined and the case was adjourned. On 6.7.2004 she was present but on that the Presiding Officer was on leave. On 7.8.2004 there was no transaction of work in the Court and the case was adjourned. on 14.8.2004 the witness was not present so it was adjourned. On the next date 20.9.2004 the witness was partly cross examined. On the prayer of the defence cross examination was not completed and time granted, so cost was imposed to the defence and the case was adjourned. The case was adjourned on some dates further as the witness was not present. On 23.2.2005 the witness was present and on that date the Presiding Officer was on leave. On 27.6.2005 the witness was not present and last chance was given to the prosecution. On the next date i.e. 29.6.2005 the prosecution case was closed and statement of the accused was recorded under Section 313 Cr.P.C. On that date itself a petition was given by the APP for giving last chance to produce the evidence. The Court granted time to the prosecution by way of last chance and on the next date the witness was present but the P.O. was on leave. On the next date i.e. 20.7.2005 the witness was present but the P.O. was not present. Similar situation was on 1.8.2005 when witness was present but the P.O. was on leave. On 3.9.2005 the case was closed. Argument was heard and judgment was delivered. 7. Some facts are relevant. In this case the witness was coming and attending the Court regularly on a number of dates. The widow of the deceased of the case was present but she was not fully cross examined on behalf of the accused. On many dates she was not examined because the P.O. himself was not available. 8. So there appears to be no laches on the part of the prosecution or witnesses at all. The Court should have given some more chances because this is not the case in which the witnesses were not coming despite knowledge of the case. On many dates she was not examined because the P.O. himself was not available. 8. So there appears to be no laches on the part of the prosecution or witnesses at all. The Court should have given some more chances because this is not the case in which the witnesses were not coming despite knowledge of the case. In this case witness was coming but her non examination was not on account of her fault. The order sheet does not show that all the process were followed which are required to be followed before closing of the evidence. Therefore in my view the court has hurriedly closed the prosecution case and thus refused opportunity to the prosecution to bring the evidence. 9. The purpose of the Court is to come at the right conclusion for which assistance of all the sides is required. If the witnesses are not given proper opportunity then truth can not come out. In the present case the witness was not afforded opportunity and the prosecution was also not afforded opportunity properly. So in my view the order of the Court was unjust, improper and liable to be set aside. Accordingly the impugned order is set aside and the Court below is directed to proceed from where they have closed the prosecution case. If the witnesses are ready to depose then the Court should give opportunity to them and should observe all para phernalia before closing the prosecution case. 10. With the aforesaid observations/ directions the impugned order is set aside and the case is remitted back for further proceeding. However, the Court below should see that the trial must be concluded without any delay. 11. Accordingly this application is disposed of.