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2012 DIGILAW 1126 (PAT)

Pama Devi v. State of Bihar

2012-08-14

BIRENDRA PRASAD VERMA

body2012
ORDER 1. Heard learned counsel appearing on behalf of the petitioner and the learned Additional Public Prosecutor appearing on behalf of the State. 2. The petitioner, the widow of the informant (deceased) of the criminal case, being aggrieved by the judgment dated 21st February 2007 passed in Session Case No. 255 of 2004/ Trial No. 66 of 2007 by the learned Additional Sessions Judge, FTC-Vth , Sheikhpura, acquitting the accused opposite party no.2 for charges under Sections 302, 341, 324 of the Indian Penal Code and Section 4 of the Exclusive Substance Act, has preferred the present revision application under Sections 397 & 401 of the Code of Criminal Procedure, 1973 questioning the correctness and legality of the impugned judgment of acquittal. 3. Learned counsel for the petitioner submits that the deceased Naresh Singh, the husband of the petitioner, in an injured condition gave his fardbeyan on 16.11.1992 to the Sub-Inspector of Police of Barbigha police station at Referal Hospital, Sheikhpura disclosing a story about commission of crime in which altogether three persons including the opposite party no.2 were named. On the basis of aforesaid fardbeyan, a case under Section 307 of the Indian Penal Code was originally registered against the accused persons. Subsequently, after death of the informant during the course of his treatment, offence under Section 302 I.P.C. was also added. On close of investigation charge sheet was submitted against three accused persons, out of them co-accused Uday Singh was shown as absconder. Before commitment of the case co-accused Pankaj Singh died and, therefore, criminal proceeding against him was dropped by the learned court below by order dated 21.09.2002. Trial of the accused opposite party no. 2 was separated from that of co-accused Uday Singh and trial proceeded against him. 4. It has further been contended that in support of the prosecution case four witnesses were examined, out of them P.Ws. 1 and 2 have been declared hostile by the prosecution as they have not supported the prosecution case. However, P.Ws. 3 and 4 fully supported the prosecution case. Learned counsel for the petitioner has fairly conceded that in the present case neither the police Sub-Inspector, who recorded the fardbeyan of the deceased, nor the Investigating Officer, who conducted investigation and submitted charge-sheet, have been examined in support of the prosecution case. However, P.Ws. 3 and 4 fully supported the prosecution case. Learned counsel for the petitioner has fairly conceded that in the present case neither the police Sub-Inspector, who recorded the fardbeyan of the deceased, nor the Investigating Officer, who conducted investigation and submitted charge-sheet, have been examined in support of the prosecution case. He has further conceded that the doctor in whose presence fardbeyan of the informant Naresh Singh (deceased) was recorded, has not been examined in the present case. 5. It is submitted by the learned counsel for the petitioner that since the informant died after one day of occurrence, therefore, his fardbeyan should be treated as a dying declaration. In his submission, since two witnesses have supported the prosecution case, therefore, even if the police officer and the doctor have not been examined, the learned trial court ought to have convicted the accused opposite party no.2 for the charges framed against him. 6. Learned Additional Public Prosecutor has opposed the prayer and has supported the impugned judgment of acquittal. It is contended that in absence of the police officer, who recorded the fardbeyan of the informant and in absence of doctor in whose presence the fardbeyan was recorded, the accused person could not have been convicted by treating the same as dying declaration. 7. After having heard learned counsel for the parties and on examination of the materials available on record, this Court finds that P.Ws. 3 and 4 are private persons. There is nothing on record to suggest that even the fardbeyan of the deceased was brought on record and was marked as exhibit. In absence of the fardbeyan of the deceased (informant) on record, the same could not have been treated as a dying declaration. Admittedly, aforesaid fardbeyan was recorded by a police officer, but he has not been examined on behalf of the prosecution. The doctor, who examined the injured- informant and in whose presence fardbeyan is said to have been recorded, has not come forward to support the prosecution case. In the aforesaid background, the learned trial court has rightly given the benefits of doubts to the accused opposite party no.2 and acquitted him for the charges. The reliance placed by the learned counsel for the petitioner on judgments of the Apex Court in the case of S. Panneerselvam v. State of Tamil Nadu, [2008 Cri. In the aforesaid background, the learned trial court has rightly given the benefits of doubts to the accused opposite party no.2 and acquitted him for the charges. The reliance placed by the learned counsel for the petitioner on judgments of the Apex Court in the case of S. Panneerselvam v. State of Tamil Nadu, [2008 Cri. Law Journal 3531] and in the case of Dharam Pal & Ors. Vs. State of U.P., [ AIR 2008 SC 920 ] will not salvage the present case, since the facts in those cases are entirely different. 8. In the result, this Court is not inclined to exercise its revisional jurisdiction for setting aside and reversing the impugned judgment of acquittal. Consequently, the application fails and is, accordingly, dismissed.