Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1203 (PAT)

Bindeshwari Mahto v. State of Bihar

2013-10-01

RAJENDRA KUMAR MISHRA, V.N.SINHA

body2013
JUDGMENT V.N. Sinha, J. No one appears either for the petitioner-informant, nor for opposite party Nos. 2 to 20 though vakalatnama has been filed on their behalf. We have considered this matter with the assistance of counsel for the State, Sri Ashwani Kumar Sinha, learned A.P.P. 2. Instant revision petition has come up before the Division Bench in the light of the order No.4 dated 13.8.2012 passed by the single Judge of the Court with reference to Chapter-II 1(xv) of the Patna High Court Rules as according to the single Judge the revision application assailing the order of acquittal for the offence under Section 302 and other allied section of the Penal Code is required to be heard by a Division Bench of this Court for the reason that the offence in punishable with death or with imprisonment for life or with imprisonment of either description for more than ten years. 3. The revision application is directed against the judgment dated 18.9.2002 passed in Sessions Case No. 328 of 1988/Trial No. 51 of 2002, arising out of Shahkund P.S. Case No. 122 of 1985, whereunder learned Additional Sessions Judge. Fast Track Court, Bhagalpur, acquitted opposite party Nos. 2 to 20 and one Binod Beldar alias Binod Mahto (accused No. 20) of the charge under Sections 148, 342, 307/149 and 302/149 of the Penal Code. Binod Beldar alias Binod Mahto, Kapildeo Beldar, Pitamber Beldar were also acquitted of the charge under Section 27 of the Arms Act. 4. The informant has invoked the revisional jurisdiction of this Court. Learned single Judge referred the matter to the Division Bench as he was of the view that the punishment which may be imposed on opposite party Nos. 2 to 20 in view of High Court Rules is within the competence of Division Bench of the Court. 5. Informant having invoked the revisional jurisdiction under Sections 397, 401 of the Code of Criminal Procedure, we have to consider the scope of the two sections and our jurisdiction to convert the finding of acquittal into one of conviction. In this connection, we refer to sub-section (3) of Section 401 of the Code of Criminal Procedure, which specifically restrain the High Court from converting the finding of acquittal into one of conviction. 6. In this connection, we refer to sub-section (3) of Section 401 of the Code of Criminal Procedure, which specifically restrain the High Court from converting the finding of acquittal into one of conviction. 6. In view of the provision of Sub-section (3) of Section 401 of the Code of Criminal Procedure, we are of the view that the reference of the revision application to the Division Bench was not called for. However, we having perused the judgment with the assistance of the learned counsel for the State, Sri Ashwani Kumar Sinha, proceed to consider the merit of the revision petition. 7. It appears, informant, Birtdeshwari Mahto (PW 3), lodged his Jardbeyan on 25.10.1985 alleging that the accused persons named in the Jardbeyan approached and surrounded his house armed with gun and rifle and took his brothers, Yogendra Beldar and Paran Beldar to the house of Ram Rakesh Matho on the pretext of settling the dispute. It is further stated in the Jardbeyan that the house of the informant was also set ablaze. Later, the two brothers of the informant were taken from the house of Ram Rakesh Matho to Baran Bahiyar after tying their hands. In Baran Bahiyar, the accused persons are said to have fired upto Yogender Beldar and Paran Beldar. Yogendra Beldar died at the spot. Paran Beldar suffered injury, fell on the ground and become unconscious later, taken for treatment to Bhagalpur Medical College Hospital where he recovered and on the next day is said to have lodged his Jardbeyan. On the basis of the Jardbeyan of the informant, First Information Report was registered, which reached the Court on 2.11.1985, i.e., after one week of its registration without explaining the delay. The delay in reaching the First Information Report to Court has been taken as a ground to disbelieve the prosecution case as the informant and the witnesses examined in support of the prosecution case have failed to explain such delay. Investigating Officer of the case having not being examined also did not indicate as to why the First Information Report reached the Court after one week of its registration. Investigating Officer of the case having not being examined also did not indicate as to why the First Information Report reached the Court after one week of its registration. Trial Court has further disbelieved the prosecution case on the ground that there is major contradiction in the evidence of PWs 1, 2, 3, 5 and 8 regarding the manner of occurrence as also on the point as to how the accused persons entered the house of the informant wherefrom they forcibly took his two brothers as there is definite evidence of the informant that he and his brothers were inside the house and the house was bolted from inside. The informant failed to explain as to how the accused persons entered the house by scaling the wall. The prosecution case has further been disbelieved on the ground that there was no occasion for the miscreants to set ablaze the house of the informant as after having taken his two brothers to the house of Ram Raksha Mahto, there was no occasion for the accused persons to set ablaze the house of the informant and in appreciation of such fact and circumstances, the police also found the case of the informant that his house was set ablaze to be false and did not submit charge-sheet under Section 436 of the Indian Penal Code. The six witnesses examined in the case are all family members and relative of the informant. The witnesses have not explained about their presence in Baran Bahiyar where the two victims are said to have been shot at. The injury report of Paran Beldar, who survived the attack has also not been proved, which gives doubt to the prosecution story that he suffered gun shot injuries in the transaction. The evidence given by the prosecution witnesses according to the defence was not the version set out by them before the police and for confirming such fact, it was necessary to have examined the Investigating Officer of the case, who having not been examined in the case and thereby according to the trial Court, the defence has seriously been prejudiced as per the finding recorded by the trial Court with reference to the evidence of the prosecution witnesses. 8. For the infirmities noted above, we do not wish to set aside the impugned judgment. The Revision Application is, accordingly, dismissed. Revision dismissed.