Criminal Appeal (U/S) No.1 of 1999 IN (SLA 85/98) ~~~~~~ Against the judgment and order of acquittal dated 01.07.1998 passed by Sri Kamal Naresh, learned Judicial Magistrate, Ist Class, Khagaria in Complaint Case No. 137 of 1993, Trial No. 171 of 1998. ~~~~~~ Jai Prakash Mandal, Son of Sri Ram Swaroop Mandal, resident of Village – Gorhiyasi, Nayagaon, P. S. – Parbatta, District – Khagaria. .... .... Complainant …. ….. Appellant. Versus 1. Bucho Mandal. 2. Naresh Mandal, Sons of Late Kamo Mandal. 3. Lagina Mandal, Son of Naresh Mandal. 4. Chulho Mandal, Son of Bhakti Mandal. 5. Ranjay Mandal. 6. Sanjay Mandal Both Sons of Gena Mandal alias Chandrashekhar Mandal. 7. Kailash Mandal. 8. Mithilesh Mandal. Both sons of Moti Mandal. 9. Surendra Mandal, Son of Late Baiju Mandal. 10. Anant Mandal. 11. Arbind Mandal. Both Sons of Surendra Mandal. 12. Ram Saran Mandal, Son of Late Baiju Mandal. 13. Manikant Mandal, Son of Ram Sharn Mandal. 14. Mushahru Mandal, Son of Biranchi Mandal. All resident of village – Gorhiyasi, Nayagaon, P. S. Parbatta, Distt. – Khagaria. .... .... Respondents …. …. Ist Set. 15.The State of Bihar …. …. Respondent …. …. 2nd Set. ~~~~~~ Appearance : For the Appellant : Mr. Ranbir Singh, Amicus Curiae. For the Respondent nos. (1 to 6) : Mr. Arbind Kumar Sharma, Advocate. For the State : Mr. Parmeshwar Mehta, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. No one appears on behalf of the appellant. Mr. Ranbir Singh, Advocate is appointed as Amicus Curiae to assist this Court. 2. Heard learned amicus curiae, learned counsel for the respondent nos. 1 to 6 as well as learned counsel for the State. 3. This appeal is directed against the order of acquittal dated 01.07.1998 passed by Sri Kamal Naresh, Judicial Magistrate, Ist Class, Khagaria in Complaint Case No. 137 of 2 1993, Trial No. 171 of 1998 for the offence under Sections 148, 323, 452 and 380 of the Indian Penal Code. 4. The case of the complainant is that on 09.03.1993 at about 8:00 P.M. the accused persona 14 in numbers armed with Lathi, Garasa, gun and pistol surrounded the complainant while he was coming to his house from the field. It is alleged that the accused Anant Mandal and Kailash Mandal fired on the complainant on which he fell down and shot hit co-accused Arvind Mandal and Surendra Mandal. It is further alleged that the co- accused Chulho Mandal and Bucho Mandal assaulted the complainant by Garasa and the other accused persons assaulted the complainant by slaps and fists and the accused persons looted the articles kept in the Varamdah of the complainant which includes the jewelries, clothes and other articles like the radio and utensils. 5. During the trial five witnesses were examined on behalf of the prosecution. They supported the prosecution case. P. Ws. 1 and 2 is the brother of the complainant. P. W. 3 is the resident of one kilometer away from the place of occurrence. P. W. 4 is the complainant himself and P. W. 5 is the doctor who examined the complainant and found only two simple injuries of abrasion. 6. The defence of the accused is that the complaint case is counter version of case lodged by the accused persons being Parvata P. S. Case No. 25 of 1993 in which the complainant was arrested on the very next date and has filed this case to save his skin from the case on release from jail after two month. The complainant never took the pleas in his bail petition as taken in the complaint case. 7. The trial court took into consideration the prosecution case in the complaint petition and the evidence adduced by the prosecution and disbelieved the prosecution case and evidence as not reliable and worthy of confidence on the ground that the allegation made in the complaint that fourteen persons surrounded the complainant and fired at complaintant from immediate vicinity but it hit the co-accused and not the complainant even assault made by Garasa on the complainant but no corresponding injury of Garasa 3 found in his person and the injury found is only simple and superficial. The trial court found that P. Ws. 1 and 2 are the full brothers of complainant and P. W. 3 is the witness who is resident of one kilometer away from place of occurrence and P. W. 4 is the complainant and P. W. 5 is the doctor who found only simple injury and none of the co- villager has come to support the prosecution case. 8. However, I perused the complaint and the evidence adduced on behalf of the prosecution and materials on record. It is apparent that the complainant was surrounded by 14 accused persons armed with firearm and other lethal weapons and firing and assault was made on his person from the point blank range but the injury report does not confirm as injury found is only simple in nature. 9. The case of the defence is that this complaint case has been filed to save himself from the counter case, the case filed by accused Surendra Mandal. This fact has been established as apparent from the statement of the complainant that he was arrested on the next day of the occurrence and was sent to jail. He has filed this case after his release from the jail after two months. The plea taken in the complaint petition has not been raised even at the stage of bail filed on behalf of the complainant. The averment in the complaint that the accused persons fired at him but he fell down and fire hit the co-accused but no such averment that the firing made by the accused persons caused injury to the same side, in the bail petition filed by the complainant and hence is an afterthought. 10. The trial court, however, disbelieved the prosecution story and the evidence that the firing made by the accused persons did not hit the complainant but hit the co-accused and further disbelieved the evidence of P. W. 3 as he is a resident of a village which is at a distance of one kilometer from the place of occurrence. The trial court further took into consideration the fact that none of the co-villager has come to support the prosecution case as disclosed in the complaint petition. 11. The trial court held that it is not possible that fourteen persons surrounded and that two persons fired from a close proximity but they did not hit the complainant and even the 4 assault by Garasa on head did not result the required injury and only a simple and superficial injury has been found by the doctor and hence taking into consideration the evidence disbelieved the prosecution case holding that the prosecution has not been able to prove the charges. 12. However, the prosecution case is that the complainant was surrounded by 14 persons armed with fire arm and other deadly weapons. The accused persons have shot at him but he did not receive any injury and the accused persons themselves got injury and further he was assaulted by Garasa by the accused persons and other deadly weapons but no corresponding injury found. P. W. 5 the doctor has only found two injuries lacerated wound which are simple in nature. 13. Hence, the nature of the allegation that he was surrounded by fourteen persons with intention to kill and accused persons were armed with fire arm and the accused persons when fired from the point blank range but it did not hit nor corresponding Garasa injury found on him and the trial court has rightly appreciated the evidence to disbelieve the prosecution case in the complaint petition when the complainant was surrounded by several persons who were armed with deadly weapons and they also assaulted but he did not receive any such injury as per the allegation and further disbelieved the witnesses P. Ws. 1 and 2 who are the full-brothers and their evidence not stand to reason and there is no illegality and irregularity in the finding recorded by the lower court and hence I do not find any merit in this appeal to interfere with and the appeal is hereby dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 15th November, 2011. N.A.F.R./Kundan.