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2010 DIGILAW 580 (PAT)

Ali Raja Miyan v. State Of Bihar

2010-04-02

MANDHATA SINGH

body2010
JUDGEMENT Mandhata Singh, J. 1. Heard both the parties. Prosecution case, in brief, is that informant and his son were involved in sale and purchase of cattle on 12.09.1999. For the purchase of cattle, deceased went to the village Duldulia in the house of the accused Sarfuddin Mian. With the help of Sarfuddin, deceased succeeded to purchase a Calf for Rs.1100/- from Gayasuddin Mian and a Cow for Rs.2200/- from Unush Mian. The deceased accompanied the accused Sarfuddin Mian and her daughter, accused Hasbun Nessa with Cow and Calf proceeded for his house at 2.00 pm. When all the three reached near a bridge, the accused Sarfuddin Mian gave a push to the deceased Mustaque due to which he fell down in the river on 17.09.1999 and drowned. 2. The informant came to village Duldulia in search of his son interrogated accused Hasbun Nessa whereabouts of the deceased, she disclosed that she along with her father and villagers Azimallah Sah, Noor Alam and Nathu Sah were accompanying the deceased with the Cow and Calf, the deceased was pushed in the river who drowned and thus, they committed his murder. They took away the cattle and cash from the deceased and sold the cattle to Maqbool Sah for Rs.3000/-which was recovered also. Hasbun Nessa was arrested and the case was registered. After investigation, Police submitted charge-sheet and the case was committed to the Court of Session for trial. After concluding the trial, the case resulted into acquittal of both the accused persons from the charges under Sections 302/34 and 201 of the I. P. C. Now, legality, correctness and propriety of the impugned judgment are challenged by filing this revision petition. In course of trial, eight witnesses were examined on behalf of the prosecution. Thereafter, accused persons statement was recorded under Sec.313 of the Cr. P. C. and Judgment of acquittal is pronounced only after hearing the learned counsels for the parties. Now, it is said that P. W. Nos.3, 4, 5 and 6 are the witnesses, who have fully corroborated the prosecutions. 3. It is pertinent to mention here that P. W. Nos.1 and 2 have stated nothing about the occurrence. They have been turned hostile but of no avail for either of the parties as no relevant statements were made on their behalf. 4. 3. It is pertinent to mention here that P. W. Nos.1 and 2 have stated nothing about the occurrence. They have been turned hostile but of no avail for either of the parties as no relevant statements were made on their behalf. 4. All the rest three material prosecution witnesses P. W. Nos.3, 4 and 5 state about going to deceased to the accused persons at village Duldulia for purchase of Cow and Calf but he did not return. Informant and witnesses went to the house of the accused persons where they met accused Hasbun Neessa, who disclosed that she and her father, accused Sarfuddin Mian along with Noor Alam, Nathu, Azimullah accompanied the deceased to a bridge snatched cash amounting to Rs.9000/- kept with the deceased and pushed him into the river and he drowned. All the accused persons have disbelieved for conviction on the ground that all of them were hearsay witnesses. A case is lodged on behalf of the Sarfuddins wife, Nashiwa Khatoon for committing loot of her household articles and assault to Hasbun Neesa. This much is relevant for the purpose that force was used if Hasbul Nisha made any confession. Further, if really it was a confession, it was for the Court to put a question regarding her making confession before the witnesses under Sec.313 Cr. P. C. Statement of the accused under Sec.313 Cr. P. C. is not a mere formality rather mandate of the legislation to be fully complied before reaching conviction. Sub-section (I) of section 313 of the Cr. P. C. runs as follows :- Power to examine the accused.- (I) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (1 ). So, the accused persons are given an opportunity to enable themselves to explain the circumstances and evidence appearing in the case generally, which is not done in the case. So, the accused persons are given an opportunity to enable themselves to explain the circumstances and evidence appearing in the case generally, which is not done in the case. Now, the Court is to consider illegality, if any, committed by the Court but I find no illegality committed by the Trial Court in passing the acquittal of the accused persons justifying interference. 5. Accordingly, the revision petition is dismissed and the order dated 05.02.2002 passed by the District and Sessions Judge in Session Trial No.109 of 2001 is hereby affirmed.