Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1135 (PAT)

Umesh Rai v. State of Bihar

2012-08-17

AHSANUDDIN AMANULLAH

body2012
ORAL JUDGMENT Ahsanuddin Amanullah, J.—Heard Mr. Bijoy Kant Mishra, learned counsel for the petitioner, Mr. Yogendra Prasad Sinha for the opposite party no. 2 and Mr. Pranav Kumar, learned A.P.P. for the State. 2. The present revision application is directed against the judgment and order dated 11.09.2002 passed by the 1st Adhoc District and Sessions Judge, Presiding Officer, 1st Additional Fast Tract Court, Siwan in Sessions Trial No. 7 of 1992/227 of 2001 by which the opposite party no. 2 has been acquitted of the charge under Section 302 of the Indian Penal Code. 3. Learned counsel for the petitioner submits that there has been miscarriage of justice and the judgment impugned is erroneous both on facts as well as in law. He submits that there were eye witnesses who have supported the prosecution story and the role played by the opposite party no. 2, who is accused, resulting in death of the deceased. It is further submitted that due to non-examination of the Investigating Officer and the Doctor, prejudice has been caused to the prosecution which was not due to any fault or laches on the part of the informant or the prosecution witnesses and justice has been denied inasmuch as inspite of committing the crime the opposite party no. 2 stands acquitted. Learned counsel further submits that the evidence which has been adduced during trial itself was sufficient to convict the opposite party no. 2, maybe for a lesser charge, which is permissible in law, but the clean acquittal is unsustainable and has occasioned failure of justice for the deceased and his family members. The petitioner being the informant and brother of the deceased has got the right to prefer the present revision application for the unjustified acquittal of the opposite party no. 2. 4. Learned A.P.P. for the State has contented that from the lower court records, including the deposition of the witnesses, it is apparent that serious injury was caused to the deceased due to the overt act of the accused, that is, the opposite party no. 2 and even though the intention to kill might not have been present, but the act itself, which later on resulted in death, was a criminal act punishable under the Indian Penal Code and the present case did not deserve, even on the basis of materials available on record, for acquittal of the accused. 2 and even though the intention to kill might not have been present, but the act itself, which later on resulted in death, was a criminal act punishable under the Indian Penal Code and the present case did not deserve, even on the basis of materials available on record, for acquittal of the accused. Learned counsel further points out that the Doctor who examined the deceased at Chapra Hospital has opined that there was rupture in the intestine and that was the reason why he was referred to P.M.C.H. for specialized treatment where ultimately he was treated, operated upon and later on died. Learned counsel submits that the petitioner who was a prosecution witness and another prosecution witness were eye witnesses to the incident and have supported the prosecution case without being discredited during cross-examination. Learned counsel also submits that benefit of doubt should be given only where there is no evidence, whereas in the present case there is sufficient evidence to convict the accused and though the Doctor and the Investigation Officer ought to have been examined, for which the court should have taken necessary steps, but in any view of the matter even from the materials on record, order of acquittal is unjustified. 5. Upon hearing learned counsel for the petitioner as well as learned A.P.P. for the State and after going through the impugned judgment and the lower court records, this Court is in agreement with the submissions of learned counsel for the petitioner and learned A.P.P. for the State. It appears that there are sufficient materials on record including the deposition of the witnesses which clearly indicate that the injury which ultimately resulted in death was caused due to the overt act of the opposite party no. 2, who is the accused. However, it is equally true that for proving the charge under Section 302 of the Indian Penal Code the Doctor was required to be examined which has not been done. The Investigation Officer was also an important witness who has not been examined. At this stage, this Court would like to observe that it was also the duty of the court concerned to ensure that the Doctor and the Investigating Officer were brought before it for examination since it is ultimately the responsibility of the court to ensure that there is no miscarriage of justice. At this stage, this Court would like to observe that it was also the duty of the court concerned to ensure that the Doctor and the Investigating Officer were brought before it for examination since it is ultimately the responsibility of the court to ensure that there is no miscarriage of justice. The Courts, thus, have been given wide power under the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code’) to direct for examination of witnesses and call persons to be examined where such evidence appears to be essential to the just decision of the case. Present is one of such cases. Even otherwise the Code provides enough power to the court concerned to convict the person for a lesser charge than what he is being tried for without there being any retrial. In the present case that also could have been one of the possibilities which the court has not considered. 6. On consideration of the entire matter in its totality and taking into consideration the facts and circumstances of the case, this Court is of the opinion that there has been miscarriage of justice by the impugned order which has acquitted the opposite party no. 2. Accordingly, this Court has no hesitation in setting aside the judgment and order dated 11.09.2002 passed by the 1st Adhoc District and Sessions Judge, Presiding Officer, 1st Additional Fast Tract Court, Siwan in Sessions Trial No. 7 of 1992/227 of 2001. The matter stands remanded to the court concerned for taking all possible steps for examination of the Doctors concerned as well as the Investigation Officer. The parties shall have right to cross-examine the witnesses. Thereafter, the court shall pass judgment after giving due opportunity of hearing to the parties concerned including the accused and if desired the counsel for the informant also. The court will also be mindful of the fact that if for reasons beyond control the said witnesses cannot be examined then whether on the basis of materials already on record, the accused can be convicted for a lesser charge as is envisaged, provided for and permissible under the Code. This Court would also like to record its appreciation for the assistance rendered by the learned A.P.P. for the State. 7. This application, accordingly, stands disposed off in the aforementioned terms.