IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.635 of 2007 IMRATOON KHATOON, WIFE OF LATE ABDUL SUBHAN, RESIDENT OF VILLAGE-KALADIYARA, BASIRGANJ, P.S. AMDABAD, DISTRICT-KATIHAR. ------------------.PETITIONER. Versus 1. THE STATE OF BIHAR. 2. MD. AKHTAR, SON OF HAZIFARZAN. 3. MD. IRFAN, SON OF JUNNAB ALI. 4. MD. JAMAL, SON OF ABDUL MANNAN. 5. NOOR ISLAM, SON OF PRADRUDDIN. ALL OPPOSITE PARTY NOS.2 TO 5 ARE RESIDENT OF VILLAGE KALADIYARA, P.S. AMDABAD, DISTRICT- KATIHAR. --------------OPPOSITE PARTIES. ----------- For the Petitioner : M/s. Bhola Prasad and Swapnil Kumar Singh, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. Nos.2 to 5 : Mr. Bimal Kumar, Advocate. ------------- O R D E R The informant of Sessions Trial Nos.189 of 2004 and 468 of 2004 arising out of Amdabad P.S. Case No.55 of 2001, has preferred this revision against the judgment and order dated 25.4.2007 passed therein by Sri Abhay Kumar, the learned Presiding Judge, Fast Track Court No.I, Katihar, whereby he has acquitted opposite party nos.2 to 5 who had been charged for commission of offences under Sections 302/34 I.P.C. and Section 27 of the Arms Act notwithstanding there being availability of sufficient materials and evidence against them on record warranting their conviction. The specious submissions on behalf of the petitioner in - 2 - support of the revision is that the learned trial court had misdirected itself and acquitted the accused in hot haste on erroneous findings and considerations by completely ignoring the factual position. In this context it was submitted that the findings of the court that the informant , the doctor and the Investigating Officer had not turned up for their evidence notwithstanding several letters and reminders having been sent to the responsible authorities for assuring the attendance of prosecution witnesses in court for their evidence was not fully correct since it would be apparent that the informant had not been served with any summons or notice from any quarters and neither was any summons issued at any point of time to the doctor or the Investigating Officer nor did any of the letters or reminders sent to the authorities disclose the requirement of the presence of the doctor and the Investigating Officer in court. It was also submitted that the accused being very influential persons had gained over the prosecution witness and, as such, they had deposed against the prosecution. It was further submitted that the evidence of the Investigating Officer, as also the doctor who had prepared the F.I.R. and performed the postmortem respectively was very much essential to prove the case of the prosecution. The evidence of the informant, too, was necessary since she was the principal witness and happened to be the wife of the deceased and was fully acquainted with the entire situation which led to the murder of her husband. That apart it was submitted that sufficient materials had come on record, which had not been considered by the trial court. - 3 - In view of the submissions advanced by the learned counsel for the petitioner it is required to state the facts briefly. The aforesaid case was registered under Section 302/34 I.P.C. and Section 27 of the Arms Act against eight persons, named in the F.I.R. on the basis of the fardbeyan given by the informant, Imratoon Khatoon, the petitioner herein, at 20 hours on 29.12.2001 in respect of an occurrence which took place earlier that day at around 7.00 A.M.. According to the informant, her husband Abdul Subhan, had given Rs.50, 000/- by way of loan to Opposite Party No.5, Noor Islam, for purchasing a tractor and when her husband had gone to the house of the said Noor Islam at around 7 P.M. on 28.12.2001 demanding return of the money wrangling and affront had resulted consequent to Noor Islam refusing to return the loaned amount. It is further alleged that in the meanwhile Noor Islam along with Khainoor and some other persons arrived at the house of the informant and started abusing Noor Islam and also threatened to kill him. It is said that co-villager Abdullah and Mazid intervened and separated both sides and assured to convene a Panchayati on the following morning in this regard. The informant claims to have identified co-villagers , Noorullah , Jamal, Irfan, Akhtar , Naushad and Wazid Ali among the persons accompanying Noor Islam and Khainoor.They, as alleged , damaged the tatti of the informant by striking blows thereupon with lathi and danda and Jamal even fired once. Thereafter all of them returned to their homes. It is further alleged that on the following day at about 7.A.M. Abdul Subhan went north of the house to answer the - 4 - call of nature, watched by the informant as she was miserably apprehensive of some ominous misfortune befalling as a fall out of the episode of the previous evening. The informant claims to have seen Naushad on a cycle hurriedly going towards the house of Noor Islam and shortly thereafter she saw all the F.I.R. named accused armed with pistols rushing to the place where her husband was answering the call of nature but by that time Subhan having finished his obligation was enroute home and as he reached near the field of Pradyuman Singh , he was surrounded by all the accused persons and on the order of Noor Islam and notwithstanding the request of Subhan for mercy , Noorullah , Jamal and Irfan allegedly fired a round each , as a result whereof Subhan sustained gun-shot injuries and succumbed at the spot. Thereafter, Noor Islam, Khainoor , Naushad and Wazid Ali firing from pistols and musket fled towards west. It is claimed that the informant had reached the place of occurrence at the time of incident and that Noor Islam in order to misappropriate the money in connivance with the others had killed her husband . It appears that after due investigation, police submitted a chargesheet against all the eight F.I.R. named accused wherein Khainoor , Noorullah, Naushad and Wazid Ali were shown as absconders. After cognizance had been taken following the bifurcation of the case of the absconding accused, the case was committed to the Court of Sessions, where charges were framed and Md. Akhtar , Md. Irfan, Md. Jamal and Noor Islam were put on trial. From perusal of the impugned Judgment it appears that at - 5 - the trial six witnesses on behalf of the prosecution, namely, Noorul Haque, Md. Nasim Akhtar , Sohida Khatoon , Kalu @ Abdul, Manjula Khatoon and Abdul Mazid were examined of whom except for Md. Noorul Haque , all others were declared hostile by stating that they had no knowledge about the incident and that the police had not recorded their statements in course of investigation. It further appears that P.W.1 Md. Noorul Haque initially fully supported the prosecution case in course of his examination-in-chief and towed the prosecution case in material particulars. However, in course of his cross-examination by the defence, he categorically stated that he had falsely deposed in support of the prosecution during his examination- in-chief due to party politics and as a matter of fact he had neither seen the occurrence nor had any knowledge thereof. It would further appear from perusal of the records that Md. Irfan and Md. Jamal were in custody. It would also appear that the case was pending for evidence for three years and as none of the prosecution witnesses were appearing and there was urgency in disposal of the trial in view of the two accused in custody, several letters and reminders had been sent to the Supdt. of Police,Katihar, D.I.G., Purnea and I.G., Darbhanga to secure the attendance of the witnesses and it was only thereafter that six witnesses appeared in the court for their evidence . From the above, a presumptive opinion has to be drawn that due notice/summons was also given to the informant, but she failed to appear. - 6 - Since all the six prosecution witnesses examined did not in the least support the prosecution case, there was in fact no requirement for examination of the doctor and the Investigating Officer. It goes without saying that even if the doctor and the Investigating Officer supported the prosecution case, their evidence by itself would not prove the prosecution case and secure conviction of the accused. On the contrary, the evidence of the doctor and the Investigating Officer are only corroborative and are for purposes of assisting the court as neither of them are witnesses of fact. Curiously, even the fardbeyan has not been proved. In the circumstances one cannot say with assertion that there has been no fair trial. From the discussions made above, it cannot be said that the court had acted in haste and pronounced the Judgment without considering or erroneously considering the evidence available on record. On the contrary, the court had taken all possible steps to procure the attendance of the witnesses of the prosecution including the informant but she had failed to turn up. In the facts and circumstances of the case I find no merit in this revision which is accordingly dismissed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 7th August,2009 Nawal Kishore Singh/A.F.R.