STATE OF JHARKHAND Vs. SANJAY MONDAL

JUDGEMENT

(1.) Both these appeals, one by State and another by victims [Cr. Appeal(DB) No. 33 of 2013] have been preferred against the judgment and order of acquittal passed by the Additional Sessions Judge-I, Jamtara in Sessions Trial No.103 of 2007, whereby the learned trial Court had acquitted the respondents-accused from the charge under Section 307 of the Indian Penal Code.

(2.) In Cr. Appeal (DB) No.201 of 2013, which is preferred by the State, an interlocutory application being I.A. No.1673 of 2013 has been preferred by the State under section 391(1) of the Code of Criminal Procedure for adducing further evidence, because it is necessary, looking to the evidence on record in Sessions Trial No.103 of 2007. There are several injured eyewitnesses who are PW.1, PW.3, PW.4, PW.5, PW.6, PW.7 & PW.8. Their injury certificates are also on the record, but, the learned trial Court has not allowed the doctors, namely, (i) Dr. R.P. Singh, (ii) Dr. S.H. Prasad and (iii) Dr. J.J. Minz, to be examined, who had given these Certificates. The summons were also issued to these doctors on 25th September, 2008. These doctors have not remained present before the learned trial Court. Ultimately, the stage of taking evidence of the prosecution was closed. The application given under Section 311 of the Code of Criminal Procedure before the learned trial Court for calling these doctors was also rejected. Again, an application was given by the prosecution under Section 311 of the Code of Criminal Procedure for examination of one Sri Anand Mandal, who was compounder of Jamtara Sadar Hospital, where the witnesses were admitted or they were treated by Dr. R.P. Singh and other doctors. This application under Section 311 of the Code of Criminal Procedure was allowed by the trial Court and the witness Anand Mandal was examined and he was narrated in the judgment by the learned trial Court as a Court Witness No.1. It is further submitted by the learned S.C.-II appearing for the State that though he was examined with permission of the Court and though he has been narrated as Court Witness No.1, the learned trial Court in internal page Nos.8 and 9 of the impugned judgment has stated that he is not a competent witness and he cannot prove injury certificates and, therefore, order of acquittal has been passed. This is not permissible in the eyes of law. It is vehemently submitted by both the counsels appearing for the appellants that it was the duty of the learned trial Court to call these three doctors in the Court as prosecution witnesses and if they are not obeying the summons, even bailable warrant can be issued against them, but, the presence of the witnesses ought to have been secured by the trial Court to meet the ends of justice. There is no fault on the part of the victims who are appellants of Cr. Appeal No.33 of 2013, because victims have no control upon the prosecution witnesses to be brought in the Court. It is vehemently submitted by the counsel for the appellants in Cr. Appeal No.33 of 2013 Mr. Kaushik Sarkhel that it is duty of the Investigating Officer of the case concerned to to remain present before the learned trial Court and also to secure presence of the prosecution witnesses. It is vehemently submitted by Mr. Sarkhel that Dr. J.J. Minz, is serving at Rajendra Institute of Medical Sciences, Ranchi, who has examined the witnesses Sukar Mandal (PW.4) and Mithu Mandal (PW.6 and appellant No.6 in Cr. Appeal No.33/13). Despite these facts, the lethargic Investigating Officer of the Sessions Case has not examined Dr. J.J. Minz as a prosecution witness and equally the learned trial Court has also not compelled Dr. J.J. Minz to appear before the trial Court as a prosecution witness and application under Sec. 311 of the Code of Criminal Procedure, was wrongly registered.

(3.) It is also submitted by the counsel for the State that the examination of these three doctors is very much necessary to secure the ends of justice, so that the real accused may not go unpunished and it is submitted by the counsel for the appellants in both the Criminal Appeals that let the judgment and order of acquittal passed by the Additional Sessions Judge-I, Jamtara in Sessions Trial No.103 of 2007 be quashed and set aside to the extent the respondents-accused have been acquitted from the charge under Section 307 of the Indian Penal Code and the matter may be remanded with a direction by allowing I.A. No.1673 of 2013 to take further evidence of Dr. R.P. Singh, Dr. H.S. Prasad and Dr. J.J. Minz and to decide the case so far as it relates to under Section 307 of the Indian Penal Code, afresh within stipulated time or under Section 326 and 324 of the Indian Penal Code.