Dina Nath Chamar & Ors vs State Of Bihar & Anr on 7 March, 2017

Dina Nath Chamar & Ors vs State Of Bihar & Anr on 7 March, 2017 

FACTS OF THE CASE 

In the present case, in the First Information Report, an allegation has been made by  one Ram Vinay Singh, son of Ram Briksh Singh that on 8.6.1989 at 5 PM while he  was standing at the Fodder Machine, about 6 to 6.15 PM, an alarm was raised that  some dacoits have entered into the house of Ram Chandra Singh whereupon he  started rushing to his house, found that instead of the house of Ram Chandra  Singh, the unlawful persons entered into his house, some persons were standing  outside the house whereupon he had gone to roof of the house and started brick  bating against the dacoits, the dacoits after taking gun from his house, fled away  towards northern side, raising slogan of Naxalwadi Jindabad Jindabad. He  identified some persons, namely, Dina Nath Chama, Shivjatan Sao, Bhola Sao,  Bhola Sao, Gama Sao who were holding gun and also identified Vishnu Deo Varai,  Kameshwar Mochi, Narain Paswan wearing Lungi and Ganji and took away  double barrel gun of his brother Gajadhar Singh bearing licence no. 8102391.

After investigation, the police submitted a charge-sheet against the petitioners and  put them on trial. The trial commenced Patna High Court Cr.Misc. No.3048 of  2016 dt. 07-03-2017 3 after commitment, the case was registered as Sessions Trial  No. 23 of, 2014. The charge was framed, the petitioners are facing trial. Altogether  7 P.Ws. have been examined. On 16.8.2014, the court gave the last chance to the  prosecution to examine the rest of the witnesses and on 10.9.2014, the evidence of the  prosecution witness was closed. On 18.11.2014, the court recorded the statement of the accused under Section 313 Cr.P.C. and the defence was given time to examine the  witness. The defence did not examine any witness in support of the case. It also  appears that in between 5.10.2015 to 8.10.2015, the prosecution argued the case,  from 28.10.2015 to 29.10.2015 the argument on behalf of the defence was led and  the same was closed on 4.11.2015. 5.11.2015 was fixed for the reply of the  prosecution. On 6.11.2015, the prosecution made an argument and the case was  posted for further argument of prosecution on 10.11.2015. 

ISSUES 

1) Said that Section 311 of the Cr.P.C. will not be allowed to be used for Filling up the lacuna left  by the prosecution 

ARGUMENTS  

When this appeal was scheduled for a preliminary hearing on November 13, 2002,  knowledgeable lawyers representing the appellant cited this Court’s decision in K.M. Mathew v.  State of Kerala & Anr. (1992) 1 SCC 217. 

The preliminary hearing for this case was held in a court that questioned the validity of the  decision in Mathew’s case (above), and as a result, it was referred to a bigger Bench in the case  of Nilamani Routray v. Bennett Coleman & Co. Ltd. (1998 8 SCC 594). The issue in Mathew’s  case (above), however, was not decided by the bigger Bench since the aforementioned Nilamani  case (supra) was resolved outside of courtConsequently, on December 3, 2002, this Court 

ordered that the present appeal be brought before a three-judge bench in order to assess the  accuracy of the legal standards set forth by this Court in Mathew’s case (above). In light of the  foregoing, we are now presented with the appeal. 

We are unable to concur with the law established by this Court in the aforementioned matter  after hearing the experienced counsel for the parties and taking into account its judgement in the  case of Mathew (supra). 

JUDGEMENT 

Date: 07-03-2017 Heard learned counsel for the petitioners and counsel for the  State as also counsel for the opposite party no.2. 

The court below vide order dated 1.12.2015 allowed the petition of the prosecution  under Section 311 Cr.P.C. to mark license of the gun as exhibit filed by Gajadhar  Singh and also to examine Gajadhar Singh in this case in the interest of justice and  repelled the argument of the respondent that the license of Gajadhar Singh which  was known to the prosecution and the prosecution has not brought at Patna High  Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 2 the appropriate stage but at the  belated stage is nothing but a filing up the lacuna in the prosecution and so much so  that Section 311 Cr.P.C. does not envisage that the document will be exhibited as a  piece of evidence at the stage of final argument.The Court has considered all the  earlier judgments on the principle of fairness of trial and has put an emphasis that  the trial court should find out the reality of the truth by allowing the witnesses to  disclose the real materials involved in the commission of the crime. Our judicial  system should behave in such a manner to earn the reputation of faith of the people  and the society, that they would get justice in the criminal adjudicatory process. It  will be relevant to quote paragraph Patna High Court Cr.Misc. No.3048 of 2016 dt.  07-03-2017 14 nos. 28, 30, 31, 32, 33, 34 and 35 of the aforesaid judgment which  reads as follows In the said authority the Court referred to the earlier 

pronouncements in Rameshwar Dayal and others v. State of U.P. [(1978) 2 SCC  518], State of W. B. v. Tulsidas Mundhra [(1963) 2 SCJ 204], Jamatraj Kewalji  Govani v. State of Maharashtra 

REFERENCES 

https://indiankanoon.org

https://ww.scconline.com

• This Article is written by Akanksha choudhary from Rajasthan school of law for women  jaipur , Intern at Legal Vidhiya.

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