IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.642 of 2011 1. Sajjan Mandal. 2. Pappu Mandal. 3. Ram Babu Mandal (All sons of Parmeshwar Mandal) 4. Raju Mandal. 5. Deepak Mandal. (Both sons of Sajjan Mandal, resident of Mohalla-Laxmi Sagar, near Gas Godown, P.S.-L.N.M.U. Campus, District- Darbhanga). ……………Petitioner Versus 1. The State Of Bihar. 2. Arun Sah, son of Late Parmeshwar Sah, resident of Mohalla-Laxmi Sagar, near Gas Godown, P.S.-L.N.M.U. Campus, District- Darbhanga. …….Opposite Parties ----------- 3. 27.09.2011 The accused-petitioners have preferred this revision application against the order dated 30.04.2011 passed by the learned 4th Additional Sessions Judge, Darbhanga in Cr. Appeal No.22/10 by which the judgment and order dated 4.11.2009 passed by the learned Judicial Magistrate, Ist Class, Darbhanga in Tr.No.1833/09, G.R.No.1861 of 2005 has been set aside and the case has been sent back to the learned trial court with direction to complete the examination of witnesses preferably within three months. The prosecution case, in brief, is that on 12.09.2005 at about 9.00 A.M., all the accused petitioners were forcibly taking possession of the land of the informant by making 2 fencing of the land of the informant. When it was protested, all of them started attacking the informant with various arms causing injuries to the informant. When his son came to rescue, he was also attacked by the accused. Both of them were injured. The accused threatened the informant and his son not to go to the police station, otherwise, they would be killed. It has further been alleged that the accused used to take various articles from the shop of the informant without paying price for the same and they used to threaten the informant to kill him, if he asked for the price of the goods. The injury report of the informant and his son are also on the record. On the written informant of the informant, opposite party no.2, Vishwavidyalaya (Darbhanga) P.S. Case No.114/05 was instituted against the accused. After the investigation, charge-sheet was submitted. Cognizance was taken. After the trial, the accused petitioners were acquitted for the offences punishable under Sections 323, 341, 504 and 506 of the I.P.C. The accused nos. 2 to 4 were also facing additional charge under Section 324 of the I.P.C., but they have also been acquitted vide judgment and order dated 3 4.11.2009 passed by the learned Judicial Magistrate in Tr. No.1833/09, G.R. No.1861/2005. The information filed Cr. Rev.No.26/10 against the judgment dated 4.11.2009 passed by the learned Magistrate, but on the prayer of the informant, the Cr. Rev. No.26/10 was permitted to be converted as Cr. Appeal No.22/10 by the learned Sessions Judge vide order dated 16.09.2010; and the appeal was transferred to the court of learned 4th Additional Sessions Judge, Darbhanga. After hearing both the parties, the impugned order has been passed. Heard Mr. Jagnnath Singh, the learned counsel for the petitioners and Mr. Ajay Kumar Jha, the learned counsel for the State. The main contention of the learned counsel for the petitioners is that the learned appellate court has failed to appreciate that if on scrutiny of the statement of the witnesses, no case is made out rather out of six witnesses, four witnesses have been declared hostile by the prosecution itself, the rest witnesses the informant and his two sons even if examined cannot be said to be reliable witnesses as they are interested witnesses and their testimony was required to be scrutinized with all care and caution. It is a duty of the 4 prosecution to establish his case beyond reasonable doubt and so far the evidence of fifth witnesses is concerned, his testimony has not been corroborated by any independent witness and the sixth witness did not appear for his cross- examination even after giving ample opportunity to him and therefore, the only conclusion with the trial court was to record finding of acquittal and not conviction. The learned counsel for the petitioners has further submitted that the appellate court has power to take additional evidence in a suitable case, but its discretion should not be exercised to fill up gaps or lacuna in the prosecution evidence. In support of his contention, he has referred to a decision in the case of Bir Singh & Ors. Versus State of Uttar Praesh reported in AIR 1978 SC 59. The learned counsel for the petitioners has further submitted that the prosecution had knowledge that the prosecution evidence was going on, but he did not prefer to adduce more evidence. He has further submitted that P.W.6 Sonu Sah had filed attendance for the cross-examination on 24.07.2009 as witness, but he did not appear in the court. On 20.08.2009, it was directed by the learned trial court to the 5 prosecution to produce the witness, failing which prosecution evidence will be closed and the case was adjourned to 6.10.2009, but on that date, the witness was not produced and the prosecution witness was closed and the case was adjourned to 27.10.2009 for the statement of the accused under Section 313 Cr.P.C. On 27.10.2009, the statement of the accused were recorded and opportunity was given to the accused for producing their evidence, which was closed at their instance and the case was fixed on 29.10.2009 for argument. On 29.10.2009, the arguments of both the parties were heard and the case was fixed for judgment on 4.11.2009 and accordingly, on that date, the judgment was delivered holding the accused innocent. It has further been submitted by the learned counsel for the petitioners that the appeal was time barred and it was not even admitted, as such, it should not have been transferred to the court of Additional Sessions Judge for hearing. Since the delay had not been condoned, as such, the appeal should have been dismissed on limitation itself. The learned counsel for the State has submitted that only five witnesses have been examined and cross- examined. P.W.6 Sonu Kumar Sah is also one of the injured, 6 he has been examined, but he has not been cross-examined and the cross-examination was deferred at the instance of the accused. No other witnesses including the informant, I.O. and the Doctor have been examined. P.Ws. I to 4 are hostile witnesses. P.W. 6 has not turned up for his cross- examination. Only P.W.5 has supported the prosecution case and his statement need to be appreciated for the just decision of the case. After considering all these facts, the learned appellate court has set aside the trial court’s judgment and has remanded the case for further trial. No interference in the impugned order is required by this Court. After hearing the learned counsel for the petitioners and learned counsel for the State, it appears that the main witnesses have not been examined by the learned trial court. The informant is also the victim of the occurrence. P.W.6 Sonu Kumar Sah is also one of the injured, he has been examined, but he has not been cross-examined and the cross- examination was deferred at the instance of the accused and thereafter he did not turn up for cross-examination. The I.O. and the Doctor have also not been examined. It is settled principle of law that criminal trial is discovery, vindication and establishment of truth. Trial should be a search for a 7 truth and not a bout over technicalities. Presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial evincing intelligence, active interest eliciting all relevant materials necessary for reaching the correct conclusion to find out the truth and administer justice with fairness and impartiality both to the parties and to the community. In this connection, reference may be made to a decision in the case of Zahira Habibulla H Sheikh and anr. Vs. State of Gujarat and others reported in (2004) 4 Supreme Court Cases 158. In the case, it appears that against the judgment and order dated 4.11.2009 passed by the learned Judicial Magistrate Ist Class, the informant preferred Cr. Rev. No.26/10 it was permitted to be converted into Cr. Appeal No.22/10 vide order dated 16.09.2010 passed by the learned Sessions Judge. Later on, the case was transferred to the court of 4th Additional Sessions Judge. As such, the learned Additional Sessions Judge has rightly entertained the Cr. Appeal and has decided it on merit vide the impugned order. The primary duty of the court is to find the truth as it has been held in the case of Zahira Habibulla H Sheikh 8 (Supra) by the Hon’ble Supreme Court. The learned appellate court has found that the learned trial court has not taken proper and legal steps for the examination of the vital witnesses, who have not been examined and as such, the learned appellate court has rightly set aside the impugned judgment and order of acquittal and has remitted the case to the learned trial court for further examination of the important witnesses and pass orders in accordance with law. In Bir Singh case (Supra), one witness Yaz Hussain was examined before the High Court and it was held that that witness was not reliable and it was held that the High Court was not justified in drawing an inference in order to demolish the positive and categorical statement of P.W.5 Umesh Chandra Verma. This decision does not help the accused petitioners. Considering the facts and circumstances stated above, I do not find any ground to interfere with the impugned order. This petition is dismissed. V.K. Pandey ( Amaresh Kumar Lal, J.)