Hakim Ullah vs State & Ors.

P.K. Jain, J.—Heard Sri P.N. Lal, learned counsel for the revisionist and Sri G.C. Saxena, learned counsel for the opposite parties. This revision has been preferred against the judgment and order of acquittal passed by the trial court in criminal case No. 253 of 1982 under Section 324, IPC, Police Station Sehramau north district Shahjahanpur.

The opposite parties Nos. 2 to 5 were charged under Section 324, 1.P.C. read with Section 34, I.P.C. by the trial Court. The prosecution examined Hakim Ullah injured in the said incident and Hikmat Ullah is eyewitness. It appears from the record that other witnesses were summoned by the trial court on 211984, 1311984, 2011984, 2511984 and 2421984. No witness except the two witnesses examined by prosecution appeared on 631984. The courts below passed following orders:

In this revision, it is contended that the case before the court below was a warrant case and it was duty of the trial court to have procured the attendance of the witnesses. The trial court has also not discussed the evidence of the two prosecution witnesses and gave no reason as to why the witnesses examined by the prosecution could not be believed. It is contended that grave miscarriage of justice has resulted.

Learned counsel for the opposite parties No. 2 to 5 contends that the opposite parties were falsely involved since in an earlier case S.T No. 542 of 1982 complainant Hakim Ullah and his relations were convicted for murdering sisterinlaw of Ejaz alias Saganney one of the accused in the present case. The accused in the present case had appeared as witnesses in S.T. No. 542 of 1982. It is also contended that after investigation, the police had submitted final report.

It is fairly conceded that in warrant trial, it is duty of the court to procure the attendance of the witnesses. The order sheet of the trial court shows that the order for summoning the witnesses was passed on some date. On 2511984, however, the order for summoning the witnesses Nazim Ullah and Wali Ullah was passed. There is nothing on record to show that the summons were actually issued to the witnesses and were served upon them or not. In case the witnesses were not appearing in compliance of the summons issued by the court, the trial court, the trial court should have applied coercive measure for procuring attendance of the witnesses. The doctor who medically examined on injured Hakim Ullah and investigating officer were material witnesses. The court below failed in his duty in not procuring their attendance and by abruptly closing prosecution evidence and thereby depriving the prosecution of an opportunity to adduce evidence.

The court below has also committed error in not scrutinizing the evidence of P. W. 1 Hakim Ullah and P. W 2 Hikmat Ullah, on the ground the prosecution has not examined the doctor who medically examined Hakim Ullah. The court below appears to have been influenced by the fact that the injured and P.W. 2 were relations and were being prosecuted in S.T No. 542 of 1982.

The trial Court has committed grave error in not affording proper opportunity to the prosecution to examine material witnesses by not using coercive measure to procure attendance of the witnesses. The court below has also failed to appreciate the evidence of the witnesses examined by the prosecution. In this view of the matter the judgment and order of acquittal passed by the trial court can not be sustained.

The revision is allowed. The judgment and order passed by the trial court in criminal case No. 253 of 1982 is set aside and case is sent back to the Chief Judicial Magistrate, Shahjahanpur for decision afresh after complying with the observation made in the body of the judgment.

Revision allowed.