Ehteshamul Haque @ Estajul Haque vs State Of Bihar And Ors

Heard learned counsel for the appellant as well as learned A.P.P for the State.

This Criminal Appeal has been preferred against judgement of acquittal dated 03.12.2018 passed by Additional Sessions Judge-cum-Fast Track

Court -II, Siwan in Sessions Trial No. 446/2011 arising out of Hussainganj P.S. Case No. 165/2010 whereby and whereunder the learned trial court

acquitted the respondent nos. 2 to 6 from the charges framed against them for the offences punishable under Sections 341, 323, 307, 379, 324, 337/34

of the Indian Penal Code.

Learned counsel for the appellant assailing the judgment submitted that the sole reason for acquittal of the respondents by the trial court is that the

injury reports have not been proved by the Doctor who prepared it, without considering the fact that the same has been proved by his Peon who was

familiar with the handwriting, signature and in whose presence the same was prepared and therefore, become admissible in evidence in view of

Section 32(2) of Evidence Act and in this connection he has placed reliance upon the decision of Supreme Court reported in AIR 1989 SC 702. It is

further submitted by learned counsel for the appellant that the impugned order is manifestly unjust and unreasonable and the trial court has passed the

impugned judgment on erroneous view of law. It is further submitted by learned counsel for the appellant that the trial court has not considered the

fact that all the prosecution witnesses including the injured witness have fully supported the prosecution case and their deposition is corroborated by

injury reports exhibits. It is next submitted by the learned counsel for the appellant that in view of the Ext. A of the defence, presence of accused

persons at the time and place of occurrence has been admitted and the trial court committed error of law by not considering the same. Hence, the

impugned judgment of acquittal passed by the trial court is fit to be set aside and respondent nos. 2 to 6 are liable to be convicted for the offence

charged against them.

On the other hand, learned counsel for the respondent nos. 2 to 6 while supporting the impugned judgment has submitted that the order of trial court

is well reasoned and considered order and there is no need to interfere into the same. He further submitted that the trial court has passed the order of

acquittal in view of the fact that the prosecution has failed to legally prove the injury report. It has further been submitted that even other injury reports

of injured witness and X-Ray report have not been proved by the prosecution. It is further submitted that the trial court has rightly ignored the medical

report. In support of his contention, he referred decision reported in 2000 (1) PLJR 387 and another decision cited by him reported in the same journal

at page 392 in which a Division Bench of this court has held that the injury reports proved by advocate clerk has no importance. On consideration of

the aforesaid decision, learned counsel for the respondents submitted that in the present case admittedly, the injury report has been proved by a Peon.

So far other injury reports, x-ray reports are concerned, same has not been proved and as such the respondents could not have been convicted under

Section 307/324 of the Indian Penal Code. He further submitted that according to the prosecution case several villagers assembled on the place of

occurrence, but not a single independent witness has been examined in this case. Learned counsel for the respondents further submitted that in view

of the aforesaid infirmities the trial court has rightly passed the impugned order and hence the same is liable to be upheld.

In this case the respondent nos. 2 to 6 stood charged for the offences punishable under Section(s) 323, 307/34, 337 and 448 of the Indian Penal

Code. To prove the charges levelled against them, the prosecution examined altogether six prosecution witnesses apart from documentary evidence.

The learned trial court recorded the statement of respondent nos. 2 to 6 under Section 313 of the Code of Criminal Procedure and after perusing the

materials available on record passed the Judgment of acquittal which is under challenge in this criminal appeal.

Having considered the submission on behalf of the parties, I went through the judgment of the trial court as well as records of the case. On perusal

of the impugned order it is apparent that the trial court after taking into consideration the fact that the injury reports has not been proved by any expert

rather by a Peon who does not have the expertise to explain the injuries, has ignored the medical evidence and in this connection the reliance placed

by counsel for appellant on a decision reported in AIR 1989 SC 702 is misplaced. As the same is quite distinguishable on facts. It further appears that

the trial court has also taken into consideration, the evidences of witnesses and noticing the material inconsistencies and discrepancies in the deposition

of the witnesses with regard to manner of occurrence and place of occurrence has passed impugned order. On perusal of the impugned order, I do

not find any perversity, absurdity in the impugned order. Considering the material discrepancies in the testimonies of the witnesses as well as the fact

that the injury report has not been legally proved the trial court has rightly passed the order of acquittal.

It is well settled principle of law that the finding of acquittal, recorded by trial court cannot be disturbed unless the said finding appears to be absurd,

perverse or without consideration of evidence, but in the present case I have already stated that the trial court having considered the evidence as well

as facts and circumstances of the case passed the impugned Judgment and therefore, I am of the opinion that there is no need to interfere into the

impugned Judgment. Accordingly, this criminal appeal stands dismissed on admission stage itself.