Patna High Court - Orders
Laldeo Prasad vs State Of Bihar & Anr on 21 January, 2014
Author: V.N. Sinha
Bench: V.N. Sinha, Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.244 of 2013
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Laldeo Prasad, S/O Late Bishambhar Bind R/O Village - Gagankura, P.S.
Shakurabad, District - Jehanabad
.... .... Appellant
Versus
1. The State of Bihar
2. Binay Bind, S/O Akhilesh Bind, R/O Village-Gagankura, P.S.
Shakurabad, District - Jehanabad
.... .... Respondents
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Appearance :
For the Appellant : Mr. Rama Kant Sharma, Senior Advocate.
For the State : Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
and
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE V.N. SINHA)
7 21-01-2014Heard learned counsel for the appellant. None appears for Respondent No. 2.
2. From Order No. 6 dated 20.09.2013 it appears that on the basis of the affidavit filed by the appellant, notice on Respondent No. 2 was deemed to have been served.
3. Appellant is the informant of Shakurabad P.S. Case No. 18/2001, registered for the offence under Section 302 of the Penal Code and Section 27 of the Arms Act. He has filed this appeal questioning the correctness of the judgment dated 12.02.2013, passed by Additional Sessions Judge-II, Jehanabad, in Sessions Trial No. 409 of 2001/S.Tr. No. 274 of 2009, whereunder Respondent No. 2 has been acquitted of the charge under Section 302 of the Penal Code and Section 27 of Patna High Court CR. APP (DB) No.244 of 2013 (7) dt.21-01-2014 2 the Arms Act.
4. It appears from the finding recorded by the trial court in paragraph 29 of its judgment that the trial court was not satisfied about the place of occurrence of the case as few of the eye-witnesses deposed before the court that occurrence took place at the door of the informant but the other witnesses deposed that occurrence took place in the Dalan of the informant. In the First Information Report also the informant has stated that his door and the Dalan are at some distance. It appears there being contrary statement of the witnesses and the distance between the door and the Dalan having not been specified in the evidence of the informant and other witnesses, verification of the distance between the two was necessary from the Investigating Officer. The examination of the Investigating Officer was not made. We, with the help of the counsel for the appellant, examined the order-sheet of this case, wherefrom it appears that after issue of summons bailable warrant of arrest for appearance of the Investigating Officer right from the year 2005 was issued, warrant for his appearance was also issued through Director General of Police on 01.11.2010, the Investigating Officer did not choose to appear and the court below on the request of the Public Prosecutor closed the case on 17.04.2012 without examining the Investigating Officer. In our opinion, examination of Investigating Officer is necessary for clarifying the distance between the door and the Dalan of Patna High Court CR. APP (DB) No.244 of 2013 (7) dt.21-01-2014 3 the informant as also to fix the place of occurrence, which is also necessary to appreciate the medical evidence of the doctor who conducted post mortem of the deceased, as there is controversy also on the point whether deceased was shot in the right or left side of his neck. There is also controversy whether shot was fired after pressing the pistol on the neck from close distance as neither charring nor ring has been found with the injury.
5. In the interest of justice, we are of the view that examination of Investigating Officer in the present case is necessary, but from the order-sheet maintained by the trial court it does not appear that any reason has been indicated by the court below as to why Investigating Officer has not been examined. In such circumstances, for ensuring justice to the case of the parties, we set aside the judgment under appeal and remit back the matter to the trial court to examine the Investigating Officer, if he is available, and after appreciating his evidence in the light of the evidence already on record to write a fresh judgment. The respondent has not chosen to appear inspite of deemed service of notice on him under order dated 20.09.2013. In the circumstances, we direct the trial court to first ensure appearance of Respondent No. 2 and thereafter the appearance of Investigating Officer of the case for recording his evidence. After securing presence of Respondent No. 2, he will be relegated to the same status as he was on the Patna High Court CR. APP (DB) No.244 of 2013 (7) dt.21-01-2014 4 date of judgment. It is made clear that if on the date of judgment Respondent No. 2 was on bail, the bail bonds, which have been cancelled in the light of the impugned judgment, (set aside under this order), shall spring back to life and he will be treated to be on bail. It appears from the impugned judgment that another connected trial of other F.I.R. named accused persons who were not sent up for trial was pending on the date of judgment and if that trial is still pending, present trial be heard along with the pending trial. In case the pending trial is already disposed of, present trial will proceed in the light of our direction above. After appearance of Respondent No. 2 as also the Investigating Officer the trial should be disposed of as early as possible, in any case, within three months from the date of appearance of the Investigating Officer in court.
6. Appeal stands disposed of.
(V.N. Sinha, J)
P.K.P. (Ahsanuddin Amanullah, J)