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2018 DIGILAW 1403 (JHR)

Avnindra Kumar v. State of Jharkhand

2018-07-03

B.B.MANGALMURTI, H.C.MISHRA

body2018
ORDER : Heard learned counsel for the informant appellant and the learned counsel for the State as also learned counsel for the accused respondents. 2. The informant appellant is aggrieved by the impugned Judgment of acquittal dated 8.7.2016, passed by the Additional Sessions Judge-VII, Palamau at Daltonganj, in S.T. No. 173 of 2013, whereby the Trial Court has acquitted the accused respondents only after examining some witnesses, who had turned hostile. 3. The impugned Judgment clearly shows that the informant and the injured witnesses had not been examined by the Trial Court below. 4. Since there is delay of 24 days in filing the acquittal appeal, I.A No. 8144 of 2016 has been filed for condoning this delay, stating that the informant was informed about the Judgment of acquittal dated 8.7.2016, after some days of passing of the Judgment, and he also took some time in arranging the money for filing this appeal. 5. Another I.A No.7334 of 2017 has been filed for seeking leave to appeal against the Judgment of acquittal. 6. Learned counsel for the informant appellant has also brought on record the entire order-sheet of the Trial Court below, which shows that charge was framed against the accused persons on 31.10.2014 and summons were ordered to be issued to the witnesses. Again the order was passed on 3.12.2014 for issuing summons to witnesses Nos. 1, 2 & 3, but the office issued the summons to the witnesses after repeated orders, only on 30.3.2015. On 26.5.2015, the office was directed to issue summons to witnesses Nos. 4, 5 & 6, which appears to be never issued by the office, though in the mean time five witnesses were examined by the prosecution, who had only turned hostile. Again by the order dated 5.3.2016, the office was directed to issue bailable warrant against witness No.1, i.e., informant, which was issued on 16.4.2016. There was no execution report of that bailable warrant, and by order dated 13.5.2016 the Trial Court below directed for issuance of non bailable warrant against the informant, which order was not complied by the office. Thereafter by order dated 15.6.2016, the Trial Court below directed for issuance of non bailable warrants against the informant and the other injured witnesses, upon the prayer of the learned A.P.P, which was complied with by the office on the same day. The next date was fixed as 30.6.2016. Thereafter by order dated 15.6.2016, the Trial Court below directed for issuance of non bailable warrants against the informant and the other injured witnesses, upon the prayer of the learned A.P.P, which was complied with by the office on the same day. The next date was fixed as 30.6.2016. There was no execution report of that non-bailable warrant, but on 30.6.2016, the Trial Court below has closed the prosecution evidence after marking the fardbeyan and the formal FIR as Exhibits. The order dated 30.6.2016 shows that the reason given by the Trial Court below for closing the evidence, is, “From perusal of the record it appears that further evidence will not improve the stage of the case. Hence the prosecution evidence is hereby closed.” 7. Learned counsel for the informant appellant has submitted that the impugned Judgment passed by the Trial Court below is absolutely illegal, passed in hot haste and without awaiting the execution reports of the warrants issued against the informant and the injured witnesses. It is also submitted that the reason giving for closing the prosecution case is also absolutely against the record and does not inspire any confidence. Learned counsel has submitted that no summon or any notice was ever served upon the informant, and even the warrants issued were never executed, as such the informant appellant had no knowledge about the fact that the witnesses were being examined in the case. Learned counsel accordingly, submitted that it is a fit case in which the Judgment of acquittal be set aside, and the matter be remanded to the Court below for concluding the trial of the accused persons after examination of the informant and the other injured witnesses. 8. Learned counsel for the informant appellant also undertakes that the informant and the injured witnesses would be examined in the Court below on day to day basis and the informant shall be present in the Court below for his examination on the date fixed by this Court. 9. Learned counsel for the accused respondents have submitted that there is no illegality in the impugned Judgment passed by the Trial Court below, as the witnesses examined by the prosecution had turned hostile and in spite of the bailable warrant and non-bailable warrants issued against the remaining witnesses, they did not appear in the Court below. Learned counsel has also opposed the prayer for condoning the delay. 10. Learned counsel has also opposed the prayer for condoning the delay. 10. Having heard learned counsels for both sides and upon going through the record, we are unable to accept the proposition given by the Trial Court below for closing the evidence. The remaining witnesses to be examined were the informant and the injured witnesses and also the I.O and the Doctor, if the informant and the injured witnesses supported the prosecution case. We are unable to understand as to how the Court below has recorded that the examination of the informant and the injured witnesses was not going to improve the stage of the case. This apart, it is apparent from the order-sheet of the Trial Court below that the prosecution evidence has been closed in hot haste. Non-bailable warrant was issued on 15.6.2016 and on the very next date, i.e., on 30.6.2016, the prosecution evidence was closed without awaiting the execution report of the non-bailable warrant. Even the execution report of the bailable warrant was not on the record. Thereafter, on the basis of the evidence of the hostile witnesses, all the accused persons have been acquitted by the Trial Court below. The reason given by the Trial Court below for closing the prosecution evidence, is absolutely unacceptable, in view of the fact that the evidence of the informant and the injured witnesses was certainly going to decide the fate of the case. This apart, we are of the considered view that the Court below has shown utter insensitiveness in closing the prosecution case. We accordingly, find and hold that the impugned Judgment of acquittal suffers from inherent illegalities and procedural lapses, and has resulted in complete miscarriage of justice, which cannot be sustained in the eyes of law. 11. We find that the delay of 24 days has been sufficiently explained by the appellant in I.A No. 8144 of 2016, as it is stated that the informant was informed about the Judgment after some days and he also took some time in arranging the money for filing the acquittal appeal in the High Court. We accordingly, condone the delay in filing the acquittal appeal. IA No. 8144 of 2016, thus, stands allowed. 12. We accordingly, condone the delay in filing the acquittal appeal. IA No. 8144 of 2016, thus, stands allowed. 12. Since we find that the impugned Judgment passed by the Trial Court below cannot be sustained in the eyes of law, we find this to be a fit case for granting leave to appeal against the Judgment of acquittal, which we accordingly, grant. Consequently, I.A No.7334 of 2017, also stands allowed. 13. Accordingly, the impugned Judgment of acquittal dated 8.7.2016, passed by the Additional Sessions Judge-VII, Palamau at Daltonganj, in S.T No.173 of 2013, including the order passed therein, discharging the accused respondents from the liabilities of their respective bail bonds, is hereby, set aside. 14. Consequently, the accused respondents shall be treated to remain on the previous bail. We fix 20.8.2018 to be the next date of the Trial in the Court below, on which date, the informant must be present in the Trial Court for his examination by the Trial Court. The accused respondents must also be present, or duly represented through their advocate, in the Trial Court on the date fixed, as above, failing which the Trial Court shall cancel their bail and issue process compelling their surrender/production in the Trial Court below. 15. As undertaken by the learned counsel for the appellant, the other injured witnesses should also be kept ready by the informant for their examination on day to day basis. 16. This acquittal appeal is accordingly, allowed with the directions as above. Appeal allowed.