SURESH KUMAR SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The informant-petitioner has preferred this revision application to set aside the order dated 28.01.2002 passed by the learned Judicial Magistrate, Ist Class, Darbhanga in G.R.No.1711/93, Trial No.277/02 by which the accused opposite party nos. 2 to 4 have been acquitted from the charges under Sections 365, 382, 388 and 389 of the I.P.C. and also for direction for giving proper opportunity to the prosecution for leading evidence.

(2.) The prosecution case, in brief, is that the petitioner deals in sale and purchase of Tea Leaves in his own shop named as S.K. Enterprises at Prince Market, Subhash Chowk, Darbhanga and he used to go to Siliguri for purchasing of Tea Leaf. On 6.09.1993, he boarded in the bus at Darbhanga at about 3.30 P.M. keeping Rs.40,000/- in the empty bag and put in the dickey of the bus. 3-4 persons sat near him and on their query he stated that he was going to Siliguri to purchase Tea Leaf. In the way, one of them asked him to pay the money failing which he would kill him. On 7.09.1993, the bus reached Siliguri bus stand at about 8-9 A.M. During journey the accused used to serve him tea, water etc. and were threatening to keep quite. Later on in the bus stand, the informant and other four accused persons came down from the bus, the accused searched his pocket and took Rs.60-70/-. Thereafter, they asked to him to purchase the goods. The petitioner took the empty bag containing Rs.40,000/- from the dickey of the bus and purchased tea worth Rs.35,000/- from the Modi Tea Company and Paras Lal Hardwari Lal Shop and when he was coming to the bus stand in the way the aforesaid four persons and two other persons surrounded him with the goods and took him in a building got the goods unloaded and took him in a room and they assaulted him and took Rs.5000/- from him. They also asked him to call his father with Rs.1,00,000/-, thereafter, he would be released. After tying him, he was closed in a room and also took away the packets of tea. During ill-treatment with the informant, he could gather the name of those accused as Leeladhar, Rajendra, Gangadhar and Sanjay and two other persons were Bangali and he could not understand his name. On 8.09.1993, al the six persons boarded him in the bus and asked to give Rs. 1,00,000/- failing which the members of his family would be killed. On 9.09.1993, he reached at his house in the night and came to know that his grandfather went to Siliguri in search of him. On telephone, he informed his grandfather about the occurrence. His grandfather could identify that he was kidnapped by the associate of Nakipuriya. On 12.09.1993 at about 10.00 A.M., the grandfather of the informant returned to Darbhanga and thereafter, the informant went to the police station and gave his written information to the police. It has been further alleged that the accused has taken his signature on the blank paper. On this information, Darbhanga (town) P.S. Case No.139/93 was instituted. After investigation, the charge-sheet was submitted and cognizance was taken against the four accused. Out of them, Sanjay Agrawal was declared absconder and later on his case was separated. As such, the case proceeded against the accused opposite party Rajendra, Gangadhar and Liladhar. After the trial, the accused have been acquitted by the impugned order.

(3.) The main contention of the learned counsel for the petitioner is that no notice was served upon the petitioner for giving evidence. The case was fixed for appearance for the accused Sanjay Agrawal, who was neither arrested nor turned up for trial. During that period, the petitioner had gone to Delhi to look after his business. In the meantime, the accused managed everything and the case of the aforesaid Sanjay Agrawal was separated on 18.07.2000 and the charges were framed against the remaining accused on 20.09.2000. Without any summon or notice, P.W.I appeared in the court, who was examined and declared hostile. Thereafter, a petition was filed by the prosecution to issue summon against the prosecution witnesses who were named in the charge-sheet and the application was allowed and order was passed for issuing summon to the witnesses. On 20.01.2001, no witness was present and the case was adjourned to 5.02.2001. In the margin column of the order-sheet, it is not clear as to whom the summons were issued. Thereafter, the other three witnesses were examined. P.W.2 was examined on 17.02.2001 and P.W.3 and P.W.4 were examined on 28.02.2001 and they were declared hostile. Thereafter, no step was taken by the Assistant Public Prosecutor to procure the attendance of the prosecution witnesses including the informant and the I.O. It has further been mentioned in the order-sheet of the court that on 2.01.2002, the prosecution was given last chance and the case was fixed for evidence on 29.01.2002, but the date has been altered and interpolated and 29.01.2002 has been interpolated as 19.01.2002 and the case was finally disposed of on 28.01.2002. It further appears from the order-sheet that on 19.01.2002; the case of the prosecution was closed and the next date 28.01.2002 was fixed for statement of the accused, but on 28.01.2002 the order was also passed and the accused were acquitted.