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2018 DIGILAW 850 (JHR)

Meghi Mian v. State of Jharkhand

2018-04-13

ANANT BIJAY SINGH

body2018
JUDGMENT : The instant criminal revision has been filed on behalf of the petitioners, being aggrieved and dissatisfied with the judgment dated 22.11.2002 passed in Cr. Appeal No. 81 of 1990 by Sri Rajesh Kumar Dubey, Ist Additional Sessions Judge, Giridih, whereby and where under the learned Additional Sessions Judge, Giridih dismissed the appeal preferred by the petitioner and confirmed the judgment of the conviction and sentence dated 27.07.1990 passed by Sri Nagendra Kumar, learned Judicial Magistrate, Giridih in G.R. No. 131 of 1984, T.R. NO. 519 of 1990 by which the learned Magistrate convicted the petitioner Huro Mian under section 326 I.P.C and sentenced him to undergo R.I for one year and fine of Rs. 100/- and in default of payment of fine to further undergo S.I for one month. Further, the court below convicted the petitioner-Meghi Mian under section 323 of the I.P.C and instead of sentencing him ordered to release him on bond of probation of Rs. 2,000/- with two sureties of the like amount each for the period of one year for keeping peace and good behaviour. 2. The prosecution case, in short, is that on 26.01.1984 at 7 A.M the petitioner Meghi Mian assaulted Degan Mian by lathi and petitioner Huro Mian assaulted by sword. The petitioners also assaulted Girwa Devi. 3. This criminal revision has been filed on 03.04.2003 and under order dated 10.04.2003 the criminal revision has been admitted and during pendency of the application, petitioner no. 2 Huro Mian was released on bail and it was submitted that petitioner no. 1 Meghi Mian has already been released on bail on furnishing bail bond for maintaining peace. 4. Heard the learned counsel for the parties. 5. Learned counsel for the petitioners has submitted that in this case I.O has not been examined and informant has died and the fardbeyan has been proved by P.W.6 which has been deprecated by the Judgment of the Hon'ble Division Bench of this Court in the case of “Amin Manjhi & Anr. Vs. The State of Jharkhand” reported in 2013 (4) JLJR 188 in which Hon'ble Division Bench of this Court has observed as under: “10. Moreover, Sarat Kumar, who is a Clerk of some Advocate, has been examined as P.W. 10, though he is not mentioned as a charge sheet witness. Vs. The State of Jharkhand” reported in 2013 (4) JLJR 188 in which Hon'ble Division Bench of this Court has observed as under: “10. Moreover, Sarat Kumar, who is a Clerk of some Advocate, has been examined as P.W. 10, though he is not mentioned as a charge sheet witness. This witness has stated in his cross-examination that neither the Fardbeyan nor the First Information Report was recorded in his presence and he is not knowing any fact of the case. It is a misfortune that the learned trial court has examined such a person as P.W. 10. In fact, he ought not to have been examined as a prosecution witness at all. By passer of a road, who has no knowledge of the facts of the case, cannot be examined as a prosecution witness by the learned trial court. Fardbeyan and First Information Report cannot be marked as Exhibits on the basis of this type of deposition, otherwise such type of witness will enter into the Witness Box in each and every case. This type of “Universal Witness” cannot be examined by the learned trial court. In the State of Jharkhand, we have observed this tendency in several criminal cases. The Trial court is examining Clerk of Advocate, who has nothing to do with the case and who is not mentioned as a witness in the charge sheet. Such type of persons are frequently being examined by the Sessions Courts and other Trial Courts to prove the First Information Report and Fardbeyan. Therefore, we hereby direct the learned Trial Courts that henceforth such type of Clerk of Advocates shall not be examined as prosecution witness to prove the First Information Report or Fardbeyan, unless in their presence First Information Report and Fardbeyan has been recorded. This tendency of the learned trial court is very dangerous for both prosecution as well as to those, who are facing trial and it hampers the “Justice Delivery System”. 6. Further, it has been submitted by the counsel for the petitioners that doctor who has been examined in this case has not corroborated the injury sustained by the injured. This tendency of the learned trial court is very dangerous for both prosecution as well as to those, who are facing trial and it hampers the “Justice Delivery System”. 6. Further, it has been submitted by the counsel for the petitioners that doctor who has been examined in this case has not corroborated the injury sustained by the injured. Further, it has been submitted that as the I.O has not been examined so the cross-examination of the injured witness has not been made and all these facts have not been considered by the trial court as well as by the appellate court and both the courts have not exercised their jurisdiction in accordance with law. 7. Learned A.P.P opposed the submissions made on behalf of the petitioners and has stated that evidence of injured has been corroborated by the doctor. 8. Having heard the learned counsel for the parties and scrutinizing the close evidence of the witnesses, admittedly, Investigating Officer has not been examined, informant has died and the fardbeyan has been proved by P.W.6formal witness and all these facts have not been considered by the court below, I am of the considered view that both the courts have failed to exercise their jurisdiction and committed error in passing the impugned judgment. 9. Accordingly, the impugned judgment dated 22.11.2002 passed in Cr. Appeal No. 81 of 1990 by Sri Rajesh Kumar Dubey, Ist Additional Sessions Judge, Giridih as well as judgment of conviction and sentence dated 27.07.1990 passed by Sri Nagendra Kumar, learned Judicial Magistrate, Giridih in G.R. No. 131 of 1984, T.R. NO. 519 of 1990 are here by set aside. The instant criminal revision stands allowed.