The case can’t be reheard due to the absence of the witnesses of the parties to the case: High Court Of Patna

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.2220 Arising Out of PS. Case No. 135 Year 1994 Thana SAHPUR District Bhojpur SHAMBHU CHOUDHARY @ SHAMBHU NATH CHOUDHARY Son of Shivbrat Chaoudhary @ Sheo Barat Chaudhary Resident of Village Hirakhi Pipra P.S. Shahpur Distt Bhojpur ... Appellant The State of Bihar 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 Mr. Arun Kumar Singh Advocate Dr. Mayanand Jha APP For the Appellant s For the Respondent s CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA 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 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. APPNo.2220 dt.31 08 2021 Sessions Trial No. 503 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 4. On the other hand learned counsel appearing for the State submitted that from the record it would appear that Patna High Court CR. APPNo.2220 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. APPNo.2220 dt.31 08 2021 Shahpur Police Station at Referal Hospital Shahpur on 5th of November 1994. In his fardbeyan he had stated that on 4th 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 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. APPNo.2220 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. LaxminiaVijay Kumar ChoudharyRamashankar ChoudharyShambhu ChoudharyShivbrat Choudhary Dindayal Choudhary Raman ChoudharyNo.2220 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. APPNo.2220 dt.31 08 2021 16. We see no merit in this appeal. It is dismissed Ashwani Kumar Singh J) ( Arvind Srivastava J

Summary: The Appellant moved to the Court for revising the previous judgment of his acquittal and plead that since the witnesses who supported him weren’t present in the court the previous time, he deserves to be heard again. The court in light of all facts and circumstances dismissed the appeal. The Hon’ble High Court of Patna before Justice Mr. Ashwani Kumar Singh and Arvind Srivastava in the matter of Shambhu Choudhary v. The State of Bihar[Criminal Appeal (DB) No.228 of 2020]. 
The facts of the case were that an instant appeal was filed under Section 372 of Code of Criminal Procedure and the judgment was challenged by the appellant passed in the Session Trial and was framed under the offenses punishable under Sections 324, 326, 341, 307, and 452 read with Section 34 of the Indian penal Code. The Appellant contended that in the main trial the witnesses were examined and on behalf of the prosecution out of whom the majority supported the prosecution case. However, the investigating officers of the case were not examined and this adversely affected the appellant’s case.

The Learned Counsel for the State contended that after exhausting all the processes, the Trial. The 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.

According to the FIR 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 a 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.

The Hon’ble High Court Of Patna stated,”… 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. 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.” The Court further added,” 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. We see no merit in this appeal. It is dismissed accordingly.”
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Judgment Reviewed By Nimisha Dublish
 The facts of the case were that an instant appeal was filed under Section 372 of Code of Criminal Procedure and the judgment was challenged by the appellant passed in the Session Trial and was framed under the offenses punishable under Sections 324, 326, 341, 307, and 452 read with Section 34 of the Indian penal Code. The Appellant contended that in the main trial the witnesses were examined and on behalf of the prosecution out of whom the majority supported the prosecution case. However, the investigating officers of the case were not examined and this adversely affected the appellant’s case. 
The Learned Counsel for the State contended that after exhausting all the processes, the Trial. The 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.

According to the FIR 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 a 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.

The Hon’ble High Court Of Patna stated,”… 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. 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.” The Court further added,” 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. We see no merit in this appeal. It is dismissed accordingly.”
Click Here To Read The Judgment
Judgment Reviewed By Nimisha Dublish
 The Learned Counsel for the State contended that after exhausting all the processes, the Trial. The 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. 
According to the FIR 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 a 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.

The Hon’ble High Court Of Patna stated,”… 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. 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.” The Court further added,” 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. We see no merit in this appeal. It is dismissed accordingly.”
Click Here To Read The Judgment
Judgment Reviewed By Nimisha Dublish
 According to the FIR 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 a 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. 
The Hon’ble High Court Of Patna stated,”… 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. 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.” The Court further added,” 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. We see no merit in this appeal. It is dismissed accordingly.”
Click Here To Read The Judgment
Judgment Reviewed By Nimisha Dublish
 The Hon’ble High Court Of Patna stated,”… 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. 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.” The Court further added,” 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. We see no merit in this appeal. It is dismissed accordingly.”