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Patna High Court

Dinanath DasversusThe State of Bihar

Decided
Disposal
ALLOWED

Holding

The High Court set aside the trial court’s acquittal, finding that procedural lapses in securing testimony of material witnesses vitiated the judgment, and remanded the case for proper examination of those witnesses.

Summary

The appellant was convicted for the murder of Rambilash Ravidas and injuries to several others, based on the statement of Ramlakhan Das and other witnesses. The trial court acquitted the accused (respondents 2‑9) citing the prosecution’s failure to produce and examine key material witnesses – the investigating officer, the doctor who examined the injured, and the autopsy surgeon – and the non‑production of documentary evidence. The appellant argued that the trial court did not follow the procedural requirements of Sections 62‑66, 311 and related provisions of the CrPC to compel witness attendance. The High Court held that the trial court erred by closing the prosecution evidence without exhausting these powers, thereby violating the principles of natural justice. Consequently, the High Court set aside the acquittal and remanded the matter to the trial court for examination of the official witnesses, directing the accused to surrender and continue on bail.

Issues considered

  • The trial court’s discretion to close prosecution evidence under Section 311 CrPC when material official witnesses were not produced.
  • Whether the trial court complied with the procedural requirements of Sections 62‑66 CrPC to compel attendance of the investigating officer and medical witnesses.
  • Whether the acquittal should be set aside on the ground of procedural lapses and denial of a fair trial.

Legislation cited

Subjects

  • murder
  • attempt to murder
  • common intention
  • failure to produce witnesses
  • procedural lapse
  • Section 311 CrPC
  • acquittal
  • remand
  • high court

Judgment

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CRIMINAL APPEAL (DB) No.1198 of 2017
             Arising Out of PS. Case No.-51 Year-2002 Thana- KONCH District- Gaya
     ======================================================
     Dinanath Das S/o Late Ram Bilash Das (Ravidas) R/o Village- Bathani Tola,
     Azad Bigha, P.S.- Konch, District- Gaya.

                                                                        ... ... Appellant
                                           Versus
1.   The State of Bihar.
2.   Ram Pravesh Das S/o Bhudhan Ravidas, R/o vill - Bathani Tola, Azad
     Bigha, P.S.- Konch, Distt.- Gaya
3.   Suresh Das S/o Karu Ravidas R/o vill - Bathani Tola, Azad Bigha, P.S.-
     Konch, Distt.- Gaya
4.   Jattu Das S/o Karu Ravidas R/o vill - Bathani Tola, Azad Bigha, P.S.-
     Konch, Distt.- Gaya
5.   Bachu Paswan S/o Bishu Paswan R/o vill - Bathani Tola, Azad Bigha, P.S.-
     Konch, Distt.- Gaya
6.   Brij Mohan Paswan S/o Rameshwar Paswan R/o vill - Bathani Tola, Azad
     Bigha, P.S.- Konch, Distt.- Gaya
7.   Nageshwar Paswan S/o Musafir Paswan R/o vill - Bathani Tola, Azad Bigha,
     P.S.- Konch, Distt.- Gaya
8.   Suresh Paswan S/o Gaya Paswan R/o vill - Bathani Tola, Azad Bigha, P.S.-
     Konch, Distt.- Gaya
9.   Ganauri Paswan S/o Chandra Paswan All R/o Village- Bathani Tola, Azad
     Bigha, P.S.- Konch, District- Gaya.

                                               ... ... Respondent/s
     ======================================================
     Appearance :
     For the Appellant/s     :        Mr. Sanjay Kumar Sharma, Advocate
     For the Respondent/s    :        Mr. Sri Ajay Mishra, APP
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
             and
             HONOURABLE MR. JUSTICE PRAVEEN KUMAR
     ORAL JUDGMENT
     (Per: HONOURABLE MR. JUSTICE PRAVEEN KUMAR)

      Date : 22-01-2026

                  Heard learned counsel for the appellant, learned

      Additional Public Prosecutor for the State and learned counsel

      for the respondent Nos. 2 to 9.
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                      2. The present criminal appeal has been preferred

         against the judgment of acquittal dated 27.05.2017 passed by

         the learned Additional District & Sessions Judge-II, Gaya in

         Session Trial No. 435 of 2014/ 524 of 2003 (S.J.) arising out of

         Konch P.S. Case No. 51 of 2002, whereby the learned trial court

         has been pleased to acquit respondent Nos. 2 to 9 of the charges

         having framed against them for the offences punishable under

         Section 302/149 and 307/149 of the Indian Penal Code.

                      Prosecution Case.

                      3. The prosecution is based upon the fardbeyan of

         Ramlakhan Das (P.W.-7) which came to be recorded by S.I. of

         police, namely, A.P. Mondal, Officer In- Charge of Konch police

         station on 06.06.2002 at 21:00 hours at A.N.M.M.C.H., Gaya in

         which it has been alleged that on the land situated in north of his

         house as claimed belonged to his Bhabhi, wife of Rambilash

         Das, a wall was being forcibly constructed by the accused

         persons with the help of co-villagers. They wanted to put

         thatched roof (Chhappar) over there. Upon protest being made,

         they did not adhere to his protest. It is further alleged that

         Parmeshwar Paswan and Lalita Devi exhorted to kill the

         informant and others. It is further alleged that 15 persons upon

         said exhortion indiscriminately assaulted the informant,
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         Ramlakhan Das and his brother Ram Bilash Ravidas, Jawahar

         Ravidas and Dwarka Das by lathi, Bhala and Garasha

         resultantly they caused injuries. Upon intervention of other co-

         villagers and local Mukhiya, Jitendra Yadav, the accused

         persons fled away. Local Mukhiya somehow made an

         arrangement to send the injured persons to hospital but in the

         way, the informant’s brother namely, Rambilash Ravidas

         succumbed to his injuries. The injured persons were treated in

         the hospital and the postmortem of the deceased, Rambilas

         Ravidas came to be performed by the doctor.

                      4. On the basis of the aforesaid fardbeyan of Ram

         Lakhan Das (P.W.-7), Konch P.S. Case No. 51 of 2002 came to

         be registered against respondent Nos. 2 to 9 and others for the

         offence punishable under Section 302/149 and 307/149 of the

         Indian Penal Code. After registration of the F.I.R., the police

         started investigation and upon conclusion of investigation,

         submitted charge-sheet against the accused persons named in

         the F.I.R. including respondent Nos. 2 to 9. Upon submission of

         charge-sheet, the learned Magistrate took cognizance of the

         offences under Sections 147, 148,149, 323, 324, 307 and 302 of

         the I.P.C. and the respondent Nos. 2 to 9 and one Jawahar

         Ravidas (since deceased) were summoned to face trial. Since the
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         case was exclusively triable by the learned Sessions Court, the

         same was committed to the court of Sessions. The charges were

         explained to the respondent Nos. 2 to 9 and one Jawahar

         Ravidas (since deceased) on 27.04.2005 who denied the charges

         and claimed to be tried. The learned trial court framed charges

         under Sections 302/149 and 307/149 of the I.P.C.

                      5. During course of trial, one accused, namely,

         Jawahar Ravidas died and as such, proceeding against him was

         dropped and hence, respondent Nos. 2 to 9 were sent up for trial

         in this case.

                      6. The prosecution in order to prove its charges

         examined altogether eight (8) witnesses. The list of the

         prosecution witnesses is mentioned hereunder in tabular form:

                     P.W-1         Abhinandan Prasad (Formal witness)
                     P.W-2         Muni Devi
                     P.W-3         Dhrig Raj
                     P.W-4         Rajmani Kumari
                     P.W-5         Hira Lal Das
                     P.W-6         Sugeshwari Devi
                     P.W-7         Ram Lakhan Das
                     P.W-8         Krishna Chaudhary (formal witness)


                      7. The statements of accused were recorded under

         Section 313 Cr.P.C., they pleaded innocence. No evidence either

         oral or documentary has been adduced on behalf of the defence.
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                      Finding of the Trial court.

                      8. Learned trial court having examined the

         evidences available on the record came to a conclusion that

         besides non-examination of oral, official and non official

         witnesses, the prosecution has also suppressed the

         documentary evidences such as F.I.R., injury report of so-

         called injured and the postmortem report of the deceased.

         Learned trial court has formed an opinion that the

         prosecution has completely failed to establish and prove

         about the persons and their weapon who caused injury upon

         them. In the opinion of the trial court, the failure of the

         prosecution to examine the doctor who examined the

         injured witnesses and failed to place on record the injury

         reports either formally or legally without any explanation

         would prove fatal to the prosecution. The trial court has

         recorded that to prove the place of occurrence, it was

         essential to examine the investigating officer but the

         prosecution has failed to examine the I.O. as such the place of

         occurrence has remained unproved. It is further recorded

         that due to non-examination of investigating officer and his

         non presence has seriously been prejudiced as the evidences

         of the prosecution witnesses are full of contradiction and
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         development and their attention has been drawn but could

         not be confronted by the I.O. as per Section 145 (2) of the

         Evidence Act. Taking note of this aspect of the matter, the

         trial court has acquitted the accused persons, namely,

         respondent Nos. 2 to 9 in this appeal.

                      Grounds of Appeal

                      9. At the outset, the learned counsel for the appellant

         draws the attention of this Court to paragraph -8 of the

         impugned judgment, which is reproduced hereinbelow;

                         “ Several time given to prosecution to produce the
                         rest witnesses as well as I.O. & doctor, but
                         prosecution has already failed to produce
                         witnesses as well as doctors.”


                      10. Referring to paragraph-8 of the impugned

         judgment and taking us to the records of the case, learned

         counsel for the appellant submitted that the learned trial Court

         had issued summons to the investigating officer and the doctor

         so as to ensure their appearance in the court as witnesses on

         behalf of the prosecution but from perusal of the records, it does

         not appear that summons were actually issued to these

         witnesses. He further submitted that no procedure as prescribed

         under Sections 62, 63, 64, 65 and 66 of the Cr.P.C. has been

         followed so as to come to a conclusion to satisfy itself that the
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         procedure to compel the witness to come and depose in the

         court has been followed. Without following such procedure, the

         evidence of the prosecution was ordered to be closed vide order

         dated 08.09.2016. The prosecution thereafter filed a petition

         under Section 311 of the Cr.P.C. on 16.09.2016 which came to

         be allowed on 09.12.2016 with a direction to the prosecution

         that if on the two consecutive dates, the prosecution witnesses

         are not examined, the same would be closed. The learned trial

         Court thereafter closed the evidence of the prosecution which is

         apparent from order dated 16.01.2017 and the statement of the

         accused under Section 313 of the Cr.P.C. came to be recorded on

         31.01.2017.

                      11. Learned counsel for the appellant further submits

         that the learned trial court has materially erred in appreciating

         the evidence available on the record and passed the impugned

         judgment in a very haste manner. The learned trial court ought

         to have exhausted all possible procedures available in law in

         order to secure at least the examination of the official witnesses

         like investigation officer and the doctor, who are material

         witnesses, in order to prove the case of prosecution.

                      12. On the other hand, learned counsel for the

         respondent No. 2 to 9 submitted that enough opportunity was
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         given to the prosecution to adduce their evidence but the official

         witnesses did not turn up even after issuance of summons by the

         trial Court and even they failed to adduce evidence on two

         consecutive dates after the petition of the prosecution under

         Section 311 Cr.P.C. was allowed by the learned trial Court. It

         has further been submitted that in absence of non-examination

         of material official witnesses, who are investigation officer and

         the doctor, the trial court rightly came to the conclusion that the

         prosecution has failed to prove the charges beyond all

         reasonable doubt and passed the judgment of acquittal of the

         respondent Nos. 2 to 9 herein. It is also submitted that if two

         views are possible then this Court in its appellate jurisdiction

         need not interfere with the judgment of acquittal. It is submitted

         that in the facts and circumstances of the case, the learned trial

         court has rightly acquitted the accused persons.

                      Considerations

                      13. We have heard learned counsel for the parties and

         perused the trial court records. Perusal of paragraph-’8’ of the

         impugned judgment and the materials available on record as

         also the orders passed by the learned trial court in this regard

         would clearly go to show that the learned trial court acted in

         haste without appreciating that it was the duty of the court as
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         well to take all appropriate steps to secure attendance of the

         prosecution witnesses. The case relates to offences punishable

         under Sections 302/149 and 307/149 of the Indian Penal Code.

         The onus was on the prosecution to prove the allegation of

         assault resulting into death of one person and the injuries

         sustained by several persons. The injured witnesses were the

         sterling witnesses in this case. The examination of doctor,

         Autopsy Surgeon and the investigating officer was of paramount

         importance. Although the postmortem report and injury report

         were on record, but the same could not be proved in absence of

         examination of Autopsy Surgeon as well as the doctor, who

         examined the injured and the absence of investigating officer

         who investigated the case has further deprived the court from

         getting quality evidence on the record. In absence of evidence of

         investigating officer, the fardbeyan also could not be proved.

                      14. The learned trial Court after summoning the

         doctor as well as investigating officer ought to have followed

         the provisions of law as mandated in Sections 62, 64, 65 and 66

         of the Cr.P.C. and thereafter if the trial court would have been

         satisfied by the fact that the summons have been duly served but

         the witnesses are evading, not complying with the summons, the

         court would have taken further steps to secure the attendance of
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         these witnesses. The court could have resorted to issuance of

         warrant including bailable and non-bailable one against the

         witnesses followed by the proceedings under Sections 82 and 83

         of the Cr.P.C. Further also recourse could have been taken under

         Section 88 of the Cr.P.C.

                      15. On perusal of the records, we find that there is no

         service report of summons and the learned trial court has not

         satisfied itself with the service of summons on the witnesses. It

         is really surprising to note that without following the provisions

         of law as discussed above, the learned trial Court chose to close

         the evidence, which is not justifiable in the present facts and

         circumstances of the case, especially, when there are clinching

         evidence on record to establish that a person has been done to

         death and some of the witnesses were injured in the said

         occurrence. The injured witnesses were the most important

         witnesses. Likewise, the examination of doctor who medically

         examined the injured persons was necessary in order to prevent

         the miscarriage of justice. The injury report would only testify

         that they were injured persons and they were victim of the

         occurrence itself, their injury reports although being on record

         could not be accepted/proved in absence of examination of the

         doctor. Likewise, the non-examination of Autopsy Surgeon
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         would also go to show that although the postmortem report was

         on record, but in the absence of examination of Autopsy

         Surgeon, the same could not be exhibited. Non-examination of

         the investigating officer has also resulted into non- proving of

         the place of occurrence and the evidence of the non-examination

         of the investigation officer would also lead to the statement of

         the witnesses in their examination under Section 161 Cr.P.C. to

         be a credible evidence.

                      16. The cardinal rule of criminal jurisprudence is that

         the justice should not only be done but it seems to have been

         done.

                      17. We further find that the learned trial Court did not

         appreciate the material witnesses available on record and acted

         in a very haste manner especially, when it is apparent from the

         record that the prosecution evidence was closed on 08.09.2016

         followed by a petition under Section 311 of the Cr.P.C. which

         came to be allowed on 09.12.2016 and the learned trial Court

         directed for examination of the said witnesses only within two

         consecutive dates. The public prosecutor failed to produce the

         official witnesses whereafter the learned trial court instead of

         taking appropriate steps to secure their attendance chose to close

         the prosecution evidence. The prosecution evidence again came
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         to be closed on 16.01.2017 followed by recording of statements

         under Section 313 of the Cr.PC. on 30.01.2017.

                      18. The trial Court was duty bound to ensure that at

         least official witnesses in a case under Section 302 and Section

         307 of the Indian Penal Code were examined in the case even

         after the trial Court allowed the petition under Section 311

         Cr.P.C. as filed by the prosecution. The learned trial Court

         would have ensured that the examination of the official

         witnesses and other charge-sheet witnesses ought to have been

         examined in the interest of justice and also following the

         cardinal principles of criminal law that natural justice be done to

         both the parties.

                      19. In the case of Harendra Rai Vs. State of Bihar

         and Ors. reported in (2023) 13 SCC 563, the Hon’ble Supreme

         Court has discussed the similar issue in detail, particularly in

         paragraphs 66 and 67, which are being reproduced hereunder for

         a ready reference;

                               “66. Before dealing and discussing the
                      evidence led in the trial court, relevant facts relating
                      to the manner in which the trial has been conducted,
                      deliberate lapses on the part of the Public Prosecutor
                      in leading the prosecution witness, lapses on the part
                      of the trial court in not exercising the powers vested
                      in it to ensure a fair and just trial, the facts
                      mentioned in the reports of the Inspecting Judge and
                      also the findings recorded by the High Court in the
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                      Division Bench, need to be mentioned.
                                 Lapses on the part of the prosecution
                      conducting the trial and that on the part of the
                      investigating agency
                                 67. Briefly the lapses are summarised as
                      under:
                                 67.1. No explanation was given for not
                      producing the scribe of the FIR. In case the scribe
                      was not available for some reason then someone else
                      from the police station could have been produced to
                      prove the hand writing and signature of the scribe.
                                 67.2. The investigating officer not
                      produced by the prosecution, is again a clear and
                      deliberate lapse.
                                 67.3. Non-production of other prosecution
                      witnesses of preparing the recovery/seizure list,
                      inquest report, carrying the dead body to the
                      hospital, and absence of any effort to prove other
                      formal aspects of the investigation clearly indicate
                      malice and deliberate lapse on the part of the
                      prosecution.
                                 67.4. The conduct of the Public
                      Prosecution in filing affidavits in evidence of the
                      witnesses of fact despite directions of the High Court
                      and further examining witnesses under Section 311
                      CrPC to strengthen the case of defence reflects the
                      tainted role of the Public Prosecutor.”

                      20. In the aforesaid discussion, this Court is of the

         opinion that the judgment of acquittal in this case has been

         passed in haste and without following the due procedures and

         settled principles of law and, therefore, deserves to be set aside.

                      21. Having given anxious and deepest consideration

         to the facts and circumstances of the case, we deem it proper to
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         remand the matter back to the learned trial Court so as to ensure

         the examination of official witnesses, who are doctor and

         Investigation Officer of the case and they are material and

         competent witness for just decision of the case. The doctor,

         being one, who has conducted postmortem of the deceased as

         well as the doctor who has examined the injured persons.

                      22. This Court, accordingly, sets aside the impugned

         judgment of acquittal dated 27.05.2017 passed by the learned

         Additional District & Sessions Judge-II, Gaya in Sessions Trial

         No. 435 of 2014/524 of 2003 (S.J.) arising out of Konch P.S.

         Case No. 51 of 2002 and remand the matter to the learned trial

         Court so as to examine the aforesaid official witnesses by giving

         opportunity to the prosecution.

                      23. Respondent Nos. 2 to 9 are, hereby, directed to

         surrender in the learned trial Court within a period of 4 (four)

         weeks from the date of uploading of this judgment. Since the

         respondent Nos. 2 to 9 were on bail during trial, the learned trial

         court shall allow them to continue on bail on such terms &

         conditions as deem fit and proper. Needless to say that if the

         respondent Nos. 2 to 9 do not surrender before the learned trial

         Court within the stipulated period, the learned trial court shall

         take all coercive steps in order to secure their appearance in the
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                      Court.

                                   24. The trial court is directed to take all possible steps

                      to secure presence of the prosecution witnesses in accordance

                      with law. The Senior Superintendent of Police, Gaya shall

                      ensure presence of the police officers, who are charge-sheet

                      witnesses of this case on the next assigned dates in the trial

                      court.

                                   25. Needless to say that the defence be also given

                      ample opportunity to cross-examine those witnesses.

                                   26. Let a copy of this judgment and the trial court's

                      record be sent down to the trial court immediately.




                                             (Rajeev Ranjan Prasad, J)


                                                  ( Praveen Kumar, J)

brajesh/-
AFR/NAFR
CAV DATE
Uploading Date
Transmission Date


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