The failure to summon all prosecution witnesses constitutes a denial of fair trial, rendering the acquittal perverse and necessitating a retrial.

JUDGMENT :

Rajeev Ranjan Prasad, J.

Heard Mr. Prashant Kumar, learned counsel for the appellant, Mr. Y. C. Verma, learned Senior Counsel assisted by Mr. Ajay Kumar Pandey, learned counsel for the Respondent Nos. 2 to 4 and Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State.

2. The present appeal has been preferred by the informant who is aggrieved by and dissatisfied with the judgment dated 16.09.2019 (in short ‘impugned judgment’) passed by learned Additional Sessions Judge-IV, Siwan (hereinafter referred to as the ‘learned trial court’) in Sessions Trial No. 516 of 2017 arising out of Siwan G.B. Nagar P.S. Case No. 32 of 2015. By the impugned judgment, the learned trial court has been pleased to acquit the accused persons of the charges under Section 341, 323, 324, 307, 379, 504 and 506/34 of the Indian Penal Code (in short ‘IPC’).

Brief Facts of the Case

3. The prosecution case is based on the written report dated 01.12.2015 submitted by Ravindra Yadav wherein he has alleged as under:-

The informant has alleged that on 01.12.2015 at about 03:00 pm in the evening, he was at his chimney when (1) Mohan Yadav, (2) Balindra Yadav, (3) Mahesh Yadav (Respondent Nos. 2 to 4 respectively) came and started abusing him. Mohan Yadav (Respondent No. 2) told the co-accused persons to kill the appellant as he has been trying to capture his land. Balindra Yadav (Respondent No. 3) and Mahesh Yadav (Respondent No. 4) assaulted the informant with knife on his neck but when he tried to save himself, it hit near his left ear and the informant got injured and fell down. Mohan Yadav snatched Rs.20-25 thousand from the informant’s pocket which he had earned by selling bricks. The accused persons also threatened the informant that if he goes to the police station, they will kill him. One Rajesh Yadav and Sukhlal Prasad got the informant treated in the hospital.

4. On the basis of the said written report, Siwan J.B. Nagar P.S. Case No. 32 of 2015 dated 01.12.2015 was registered for the offences punishable under Sections 341, 323, 324, 307, 379, 504, 506 and 34 IPC.

5. After investigation, police submitted a chargesheet. The learned Chief Judicial Magistrate, Siwan having found the prima-facie case on the basis of the said chargesheet, took cognizance of the offences. Finding that the offences alleged are triable by the Court of Sessions, the learned Chief Judicial Magistrate committed the records to the Court of Sessions for trial.

6. In the trial court, charges were explained to the accused who denied the charges and claimed to be tried whereupon charges were framed against them vide order dated 28.03.2018.

Submissions on behalf of the Appellant

7. Learned counsel for the appellant submits that after framing of charge as the trial began, the learned trial court was requested to issue summons to the witnesses. Learned counsel submits that on 30.01.2019, an application was filed on behalf of the prosecution for issuance of summons to the witnesses. It is stated that in the margin portion of the order dated 28.03.2018, the Office Clerk has recorded “ lEeu fuxZr ¼4½ ” which means summons were issued to four witnesses only. Learned counsel submits that in the margin portion of the order dated 05.06.2018, it is recorded that service reports of summons are attached, therefore, it may be taken that the summons were served upon the four witnesses. In the chargesheet, however, there are altogether nine witnesses including the official witnesses, therefore, on the face of it, it is evident that summons were not issued to all the prosecution witnesses.

8. Learned counsel submits that when no witness appeared to depose, the prosecution filed an application on 30.01.2019 requesting the learned trial court to issue warrant against the witnesses. The learned trial court directed for issuance of bailable warrant against the prosecution witnesses but from the records, this Court will not find any endorsement of the Office that bailable warrants were issu