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
- Code of Criminal Procedure, 1973 — s. 145(2), 311, 313, 62, 63, 64, 65, 66, 82, 83, 88
- Indian Evidence Act, 1872 — s. 145(2)
- Indian Penal Code — s. 147, 148, 149, 302, 307, 323, 324
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)
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