IN THE HIGH COURT OF JUDICATURE AT PATNA G. APP. (DB) No.37 of 2010 The State of Bihar ……….. Appellant Versus 1. Surajdeo Yadav, son of Late Kuli Yadav, 2. Yadu Yadav, son of Surajdeo Yadav, 3. Ali Yadav, son of Surajdeo Yadav, 4. Jagdeo Yadav, son of Surajdeo Yadav, all resident of village – Majhanpura, Police station, Jehanabad, District – Jehanabad ……. Respondents. ----------- 3/ 11.8.2010 Heard counsel for the appellant. This is an appeal of state against the judgment of acquittal passed by the Additional Sessions Judge II, Jehanabad dated 7.7.2009 in S.T. No. 322 of 1992/ 108 of 2009. The appeal has been preferred on the ground that the trial court without considering the case of the prosecution as well as material collected during investigation held by the I.O. has acquitted the respondents – accused persons against whom there were serious charges of committing the murder of Bhagwan Yadav and causing gun shot injuries to the informant Chandeshwar Yadav and Ranjan Yadav. On perusal of the impugned judgment, what transpires that the ground which was taken by the state for filing this appeal against the judgment of acquittal, is not sustainable for the reason that the State, being the prosecutor, has completely failed in discharging its duties, in production of witnesses. Jehanabad Police station case no. 200 of 1983 was instituted for the offences under sections 147, 148, 149, 341, 302, 2 307, 426, 324 and 326 of the IPC and sections 26 and 27 of the Arms Act against the named accused persons with an allegation that while the informant along with his brother Ranjan Yadav and Shiv Bhagwan Yadav was working in their fields, the accused persons came and began to cut the ridge of the field of the informant and, on protest, some hot altercation took place and, thereafter, accused persons left for their house and returned along with fifty persons, armed with lathi, bhala, garasa, gun and rifle, surrounded the informant and his brother and on the orders of Kulli Yadav, Yadu Yadav fired upon Sri Bhagwan Yadav who succumbed to the injuries at the spot itself. It is further alleged that accused Jagdeo Yadav fired from his gun which hit the back of Ranjan Yadav, brother of the informant and accused Sahdeo Yadav again fired which hit the informant on his back. Thereafter, accused Surajdeo Yadav assaulted with garasa. Several villagers who were working in the nearby field, arrived and they saved the life of the informant and his brother by bringing them to Masaudhi hospital for their treatment. The criminal case was instituted in the year 1983 and charges were framed after commitment of the case on 8.1.2003. Since the date of framing of the charge till the date when the evidence of the prosecution was closed, i.e., 22.6.2009, despite all efforts of the trial court by sending notices, issuing warrants, bailable/non-bailable and informing the police officers from the rank of Superintendent of Police up to D.G.P., not a single 3 witness was produced. Under the law, it is the duty of the prosecutor to produce witnesses for proving the charge. In this case, the state being the prosecutor, it was for the state and its agencies, i.e., the police to produce the witnesses. Under section 170(2) Cr.P.C., when the Officer Incharge of the police station forwards an accused to a Magistrate, he also undertakes security for his future appearance before the Magistrate/ Court. The bond executed by the accused for release not only puts an obligation on the accused for his appearance for facing trial, but simultaneously binds the police officer for production of accused and for production of witnesses for adducing evidence and for proving charges framed against the accused. The Apex Court has also held in its decision reported in AIR 2002 S.C. 270 (Shailendra Kumar Vs. The State of Bihar and others) that it is the duty of the Investigating Officer to remain physically present with the witnesses at the time of trial. It is his duty to keep the witnesses present. In case of failure on their part, it is the duty of the Court to take appropriate steps including issuance of non bailable warrant, if necessary, for properly conducting the trial. In this case, so far the court is concerned, it has properly discharged its duty, by making all efforts and by exhausting all processes available under the Code of Criminal 4 Procedure, but, the Investigating Officer and the senior police officers have failed to discharge their duties. They simply ignored all intimations sent by the court for production of witnesses. The trial court waited for six years for production of witnesses but not a single witness appeared to support the case of prosecution. Thus, in the circumstances, the court could not have done any thing better than to acquit the accused persons, on account of non-production of witnesses and charges framed against them being not proved. Thus, we find that the findings recorded by the trial court cannot be faulted, rather, it is a case in which action is needed against the police agency and the state authorities who deliberately did not take any step for production of witnesses. In case of non-production of witnesses, there cannot be any other result than acquittal of the respondents-accused persons. This appeal is accordingly dismissed. Anil/ (Mridula Mishra, J.) ( Dharnidhar Jha, J.)