We have heard the learned counsel appearing for the
appellant, Sanjay Kumar, at some length, who has drawn our
attention to the depositions of the eye-witnesses, namely, Sanjay
Kumar (the appellant and informant/complainant), who had deposed as
PW-8 and Kalam, who had deposed as PW-7, and the other witnesses,
namely, Dinesh Prasad (PW-6) and Krishna Chandra Dubey (PW-10), the
investigating officer.
As per the case of the prosecution, respondent no. 5, Megnath
Koiri, was detained at the spot itself after three intruders had
entered into the shop and one of them fired at the father of the
informant/complainant, that is, the deceased, Ishwar/Ishwer
Chander. Respondent No. 5, Megnath Koiri, had in the said
occurrence, suffered injuries and was arrested after the police
reached the spot.
Deepak Guglani
Kumar, on the very first day, without even calling for the trial
Court records.
The impugned judgment refers to the statement under Section
164 of the Code of Criminal Procedure, 19731, made by respondent
No. 5, Megnath Koiri, which was not produced in the Court. It also
records that the version given by Sanjay Kumar (PW-8) is not
corroborated by other staff members, without noticing the
deposition of Dinesh Prasad (PW-6) in his cross-examination by the
prosecutor, after he was declared hostile.
Learned counsel for the appellant submits that even Ashok
Kumar Bhattacharya (PW-3) did accept that he had seen the deceased
tumbling down on the chair outside and that one person was
apprehended. It is highlighted that there was a long delay in the
trial and as a result, they could not identify respondent No. 5,
Megnath Koiri, who was apprehended at the spot. However, the fact
that respondent No. 5, Megnath Koiri, was apprehended at the spot,
as per the learned counsel, cannot be debated or doubted in view of
the depositions of the appellant, Sanjay Kumar (PW-8) and the
investigating officer, Krishna Chandra Dubey (PW-10).
Another reason noted by the High Court, to dismiss the appeal
in limine, was that respondent No. 5, Megnath Koiri, was acquitted
in the trial relating to the offence under the Arms Act, 19592. It
is also stated that the ballistic report of the pistol allegedly
recovered from respondent No. 5, Megnath Koiri, was not produced in
the Court.
In our opinion, the present case had to be decided on the
1For short, “CrPC.” 2For short, “1959 Act.”
basis of the evidence adduced before the trial Court in the
chargesheet(s) in question. The judgment of acquittal for the
offence under the 1959 Act would be based upon the evidence led in
the said case. Reference, in this regard, as to the relevancy of
judgments, can be made to Sections 40 to 44 of the Indian Evidence
Act, 18723. This aspect has not been considered by the High Court.
The failure of the investigation or prosecution is an aspect which
the Court has to consider after weighing the depositions of the
eye-witnesses.
The learned counsel for the appellant, Sanjay Kumar, referred
to Section 391 of the Cr.P.C. as well as Section 165 of the 1872
Act.
As we are inclined to pass an order of remand in the present
case, we are not inclined to delve deeper into the matter. We,
accordingly, set aside and quash the impugned order dated
03.07.2013 passed by the High Court, dismissing the appeal
preferred by the appellant/informant/complainant, Sanjay Kumar, in
limine. Criminal Appeal (DB) No. 573/2013 shall, accordingly,
stand revived on the file of the High Court to its original number.
The High Court will issue notice in the appeal and decide the same
on merits and in accordance with law.
We clarify that the observations made in this order are for
the disposal of the present appeal. The High Court shall
independently examine the material and the evidence on record and
form its own opinion, while deciding the appeal.
To cut short the delay, parties are directed to appear before
3For short, “1872 Act.”
the High Court in the aforesaid appeal on 24.03.2025. As it is an
old matter, the appeal may be heard and decided by the High Court
as expeditiously as possible.
The present appeal is disposed of.
The original records of the Trial Court/High Court shall be
sent back immediately.
Pending application(s), if any, shall stand disposed of.