Patna High Court
Shambhu Choudhary @ Shambhu Nath ... vs The State Of Bihar on 31 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.228 of 2020
Arising Out of PS. Case No.-135 Year-1994 Thana- SAHPUR District- Bhojpur
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SHAMBHU CHOUDHARY @ SHAMBHU NATH CHOUDHARY Son of
Shivbrat Chaoudhary @ Sheo Barat Chaudhary Resident of Village - Hirakhi
Pipra, P.S.- Shahpur, Distt - Bhojpur.
... ... Appellant
Versus
1. The State of Bihar
2. Prabhunath Yadav @ Raghunath Ahir Son of Sheo Kumar Yadav Resident of
Village - Hirakhi Pipra, P.S.- Shahpur, Distt - Bhojpur.
3. Deonath Bind Son of Late Ramgahan Bind Resident of Village - Hirakhi
Pipra, P.S.- Shahpur, Distt - Bhojpur.
4. Dharam Bind Son of Late Kailash Bind Resident of Village - Hirakhi Pipra,
P.S.- Shahpur, Distt - Bhojpur.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Arun Kumar Singh, Advocate
For the Respondent/s : .Dr. Mayanand Jha, APP
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
Date : 31-08-2021
Heard Mr. Arun Kumar Singh, learned counsel
for the appellant and Dr. Mayanand Jha, learned counsel for the
State.
2. By filing the instant appeal under the proviso
to Section 372 of the Code of Criminal Procedure, the appellant
has challenged the judgement dated 16.11.2019 passed in
Patna High Court CR. APP (DB) No.228 of 2020 dt.31-08-2021
Sessions Trial No. 55 of 2003 by the learned Presiding Officer,
Fast Track Court - II, Bhojpur at Ara whereby and whereunder
the respondent nos. 2 to 4 have been acquitted of the charges
framed against them for the offences punishable under Sections
324, 326, 341, 307 and 452 read with Section 34 of the Indian
Penal Code.
3. Learned counsel for the appellant submitted
that the respondent nos. 2 to 4 were summoned under Section
319 of the Code of Criminal Procedure. He contended that in
the main trial, altogether 9 witnesses were examined on behalf
of the prosecution, out of whom P.W.1 to P.W.6 had fully
supported the prosecution case. However, during trial, the
Medical Officer, who had examined the victim and the
Investigating Officer were not examined. Since they are official
witnesses, for their failure to turn up before the court during
trial, the case of the appellant ought not to have adversely
affected. Lastly, he contended that the judgement of acquittal
has been recorded by the Trial Court erroneously without
appreciating the fact that no summon were ever served upon the
appellant.
4. On the other hand, learned counsel appearing
for the State submitted that from the record, it would appear that
Patna High Court CR. APP (DB) No.228 of 2020 dt.31-08-2021
the FIR was registered in the year 1994 and the case was
committed to the court of session in January, 2003. The
Respondent nos. 2 to 4 were not sent up for trial. The trial had
proceeded against only Deolal Bind. In his trial, after
examination of 9 witnesses, respondent nos. 2 to 4 were
summoned by the Trial Court, as additional accused, in exercise
of power conferred under Section 319 of the Code of Criminal
Procedure. He contended that after appearance of the respondent
nos. 2 to 4, the trial court issued summons and processes, in
order to ensure appearance of the prosecution witnesses, but
none of the witness was examined on behalf of the prosecution.
He contended that after exhausting all the processes, the Trial
Court closed the prosecution case and in absence of any
evidence on record acquitted the respondent nos. 2 to 4 and
discharged them from the liabilities of their bail bonds. He
contended that there is no illegality in the order passed by the
Court below.
5. We have heard learned counsel for the parties
and carefully perused the records. The FIR relates to occurrence
that had taken place in the month of January, 1994. It is based
on the fardbeyan of the appellant Shambhu Choudhary @
Shambhunath Choudhury, which was recorded by the SHO,
Patna High Court CR. APP (DB) No.228 of 2020 dt.31-08-2021
Shahpur Police Station at Referal Hospital, Shahpur on 5th of
November, 1994. In his fardbeyan, he had stated that on 4 th of
November, 1994 at about 1.30 AM., when he along with his
father Shiv Barat @ Sheo Barat Choudhary was sleeping in
front of his house in Palani, he woke up on hearing some sound.
He saw that Raghunath Ahir and Deonath Bind, having Daab in
their hands, were repeatedly assaulting his father while Deolal
Bind and Dharam Bind were catching hold of his legs. He raised
alarm and saw cut injury on the neck of his father. He also saw
injuries on different parts of his body. On his alarm, villagers
rushed there whereafter the accused persons fled away. He
stated that about a year ago Deonath Bind and Raghunath Ahir
had taken away Masoor crop from his khalihan to which they
had objected and the accused persons threatened them of dire
consequences.
6. On the basis of the fardbeyan of the informant,
Shahpur P.S. Case No. 135 of 1994 was registered. On
Completion of investigation, the police submitted charge sheet
only against Deolal Bind.
7. On perusal of the chargesheet, learned Chief
Judicial Magistrate, Bhojpur at Ara took cognizance of the
offences and summoned Deolal Bind to face trial.
Patna High Court CR. APP (DB) No.228 of 2020 dt.31-08-2021
8. After completing the mandatory requirements
of Section 207 of the Cr. P.C., the case of Deolal Bind was
committed to the court of sessions vide order dated 18.01.2003.
In due course, the sessions court framed charges against the
accused Deolal Bind.
9. In course of trial, 9 witnesses were examined
on behalf of the prosecution. They are Smt. Shivratia Devi
(PW1), Mst. Laxminia (PW2), Vijay Kumar Choudhary (PW3),
Ramashankar Choudhary (PW4), Shambhu Choudhary (PW5),
Shivbrat Choudhary (PW6), Dindayal Choudhary (PW7),
Raman Choudhary (PW8 and Uma Shankar Choudhary (PW9).
After examination of the aforesaid 9 witnesses, a petition was
filed on behalf of the prosecution for summoning respondent
nos. 2 to 4 as additional accused.
10. Vide order dated 23.12.2005, respondent nos.
2 to 4 were summoned to face trial. They appeared before the
trial court and charges were framed against them to which they
pleaded not guilty.
11. Accordingly, a de novo trial commenced as
the witnesses were examined earlier in absence of the
respondent nos. 2 to 4 . In spite of the processes having been
issued against the witnesses in the de novo trial, none of them
Patna High Court CR. APP (DB) No.228 of 2020 dt.31-08-2021
turned up to support the prosecution case. The trial court has
recorded in the impugned judgement that after issuance of
summons to the witnesses all efforts were taken to ensure their
appearance but no prosecution witness turned up to depose
before the Court.
12. Though a submission has been made on
behalf of the appellant that summons were never served to the
witnesses, the order sheet of the court below has not been
annexed with the memo of appeal to support the contention that
summons were not served.
13. Even otherwise, we are of the view that the
prosecution witnesses were aware of the proceedings going on
before the trial court. They had already entered into appearance
and deposed before the court before summoning of the
respondent nos. 2 to 4 under Section 319 of the Cr.P.C.
14. In that view of the matter, they ought to have
been vigilant about the on going proceedings before the court.
The trial could not have been kept pending for an infinite period
awaiting for the witnesses.
15. In that view of the matter, we are of the
opinion that no illegality can be found with the judgment of
acquittal passed by the trial Court.
Patna High Court CR. APP (DB) No.228 of 2020 dt.31-08-2021
16. We see no merit in this appeal. It is dismissed
accordingly.
(Ashwani Kumar Singh, J)
( Arvind Srivastava, J)
Jagdish/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 07/09/2021
Transmission Date 07/09/2021
