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2014 DIGILAW 392 (PAT)

Karuna Devi W/o Jai Ram Mahto v. State of Bihar

2014-03-28

AHSANUDDIN AMANULLAH, V.N.SINHA

body2014
ORDER : V.N. Sinha, J. Heard learned counsel for the appellant, learned counsel for the State and learned counsel for the private respondent no. 2. 2. Instant appeal has been filed by the informant of Pakribarawn P.S. Case No.185 of 2012 against the judgment dated 11.06.2013 passed by Additional Sessions Judge (Ad hoc)–V, Nawada in Sessions Trial No. 109 of 2013/24 of 2013 where under the prosecution case as set out in the written report of the informant of the aforesaid Pakribarawn Police Station case has been disbelieved and the sole accused private respondent, husband of the deceased has been acquitted of the charge under Section 302 of the Penal Code. 3. It appears the informant (P.W. 4) and the other villagers of the husband of the deceased respondent (P.W. 1 to 3) were examined. Informant supported the case that after her arrival in the house of her son-in-law she saw the dead body of her daughter who was married 5 years ago and that blood was oozing out from her nose and ear. She further stated that earlier there was Panchayati to settle the matrimonial dispute between the deceased and respondent no. 2, but the villagers of the husband of the deceased did not support the prosecution case. Investigating Officer and the Medical Officer who conducted the investigation, post mortem respectively was not examined. Informant P.W. 4 after recording her deposition was discharged on 06.05.2013. The trial court under order dated 06.05.2013 directed office clerk to issue summons through Superintendent of Police for appearance of Investigating Officer and Doctor on 15.5.2013 but on that day neither the two witnesses appeared nor the prosecution took any steps in the trial. Trial Court however directed the prosecution to take steps for production of witnesses from its level on 24.05.2013 but the case was taken up on 23.05.2013 fixing 03.06.2013 for evidence with direction to office clerk to issue bailable warrant for appearance of Medical Officer, Investigating Officer. From margin of the order-sheet dated 23.05.2013 it appears that bailable warrant was handed over to learned APP for being served on the two officers. On 03.06.2013 neither service report of the bailable warrant was received nor the two officers appeared for recording the evidence, the trial however was adjourned to 10.06.2013. From margin of the order-sheet dated 23.05.2013 it appears that bailable warrant was handed over to learned APP for being served on the two officers. On 03.06.2013 neither service report of the bailable warrant was received nor the two officers appeared for recording the evidence, the trial however was adjourned to 10.06.2013. From order dated 10.06.2013 it appears a petition was filed on behalf of the prosecution stating that it is not necessary to examine Jai Ram Mahto husband of the informant as witness and the prosecution evidence be closed. Aforesaid petition dated 10.06.2013 is also not available on record. It is thus evident that without serving summons/taking coercive steps for appearance of Doctor, Investigating Officer and on the concession recorded by the A.P.P. conducting the trial by filing petition prosecution evidence was closed on 10.06.2013 fixing 11.06.2013 as the date for recording the statement of the accused under Section 313 Cr.P.C. It appears that on 11.06.2013 not only the accused was examined under Section 313 Cr.P.C. but arguments were also heard and on the same day judgment delivered acquitting the sole accused, the husband of the deceased. Judgment was delivered in open Court. Date, Month and Year of the judgment was required to have been typed in the judgment but it is quite strange to notice that the Month, Year of the judgment has been typed but the date of the judgment is left untyped to be filled up by the Court after putting signature. Such is the practise if after conclusion of hearing the judgment is reserved and pronounced later in Court. From the order-sheet, it is quite evident that on 10.06.2013 examination of the prosecution witnesses was closed and the case was fixed for recording the statement of the sole accused under Sections 313 Cr. P.C. on 11.06.2013. As such, in our opinion, there was no occasion for the presiding officer of the trial Court to have prepared the typed judgment in advance indicating the month, year of the judgment keeping blank the space for the date of the judgment on both first and last page of the judgment. Having noticed the aforesaid facts we issued notice under order dated 21.01.2014 not only to Respondent no. 2 but also to the officer concerned. The officer has filed his reply under letter no. 52 dated 25.03.2014 which is quoted herein below and amounts to admission of misconduct. Having noticed the aforesaid facts we issued notice under order dated 21.01.2014 not only to Respondent no. 2 but also to the officer concerned. The officer has filed his reply under letter no. 52 dated 25.03.2014 which is quoted herein below and amounts to admission of misconduct. "No. 52/ From, Ambika Prasad Gupta, Adhoc Addl. District & Sessions Judge-4, Darbhanga. To, The Assistant Registrar, High Court of Judicature at Patna. Subject :- Report/Explanation regarding Sessions Trial No. 109/2013/24/1013 arising out of G.R. Case No. 2160 of 2012 which was disposed of on 11.06.2013 in a capacity of Addl. Sessions Judge (Adhoc)-Vth, Nawada for reference in Criminal Appeal No. 770 of 2013 (D.B.) Dated. Darbhanga, the 25th March, 2014. Sir, Most humbly and respectfully, I beg to pray that inadvertently and due to congestion of work such type of mistake occurred and I shall be careful in future. Therefore looking into my pitiable condition your honour be graceful to take most sympathetic attitude by exercising your glorious chair. It is, therefore, requested to be kind enough to place the report/explanation for kind perusal of the Hon'ble Court and for which I shall be highly obliged. Yours faithfully Adhoc Addl. Dist. & Sess. Judge-4 Darbhanga 25.3.2014" 4. In the circumstances, we are satisfied that the impugned typed judgment was prepared in advance even before recording the statement of the accused and hearing argument in trial on 11.06.2013, accordingly, we have no option but to set aside the judgment and order dated 11.06.2013 passed by Additional Sessions Judge (Ad hoc)–V, Nawada in Sessions Trial No. 109 of 2013/24 of 2013 and the matter is remitted back to the trial Court with a direction to issue fresh summons through the Superintendent of Police, Nawada for appearance of the Doctor and the Investigating Officer who conducted the post mortem/investigation in the case and after recording their evidence to once again record statement of Respondent no. 2 under Section 313 Cr.P.C., hear argument afresh and thereafter pass judgment in accordance with law. It shall be the responsibility of the Superintendent of Police, Nawada to ensure appearance of the Doctor and the Investigating Officer on the date fixed by the Court below for recording their evidence. Respondent no. 2- husband has been released pursuant to the impugned judgment. He is directed to surrender in the Court below on or before 15th April, 2014. It shall be the responsibility of the Superintendent of Police, Nawada to ensure appearance of the Doctor and the Investigating Officer on the date fixed by the Court below for recording their evidence. Respondent no. 2- husband has been released pursuant to the impugned judgment. He is directed to surrender in the Court below on or before 15th April, 2014. As the sole private respondent has been directed to surrender in the Court below, he be taken in custody. The Superintendent of Police, Nawada should ensure appearance of the Doctor and the Investigating Officer on the date fixed for their examination by the Court below to ensure their examination on the date fixed so as to enable the Court below to conclude the trial within three months from the date of surrender of the private respondent. 5. The appeal is accordingly, allowed. 6. In view of our finding in paragraph nos. 3, 4 above, Registry is directed to place this judgment before Hon'ble the Chief Justice for appropriate action in the matter. 7. Let this judgment as also the records of the trial be sent back to the Court below through Special Messenger.