IN THE HIGH COURT OF JUDICATURE AT PATNA G. APP. (DB) No.36 of 2010 THE STATE OF BIHAR ………… APPELLANT. Versus 1. RAM UDAR SHARMA, S/O SURYUG SHARMA 2. JITENDRA SHARMA, S/O SIYA SHARAN SHARMA 3. RAM DAYA SHARMA, S/O SHAMRU SHARMA 4. SHIYA SHARAN SHARMA, S/O SHAMRU SHARMA ALL RESIDENT OF VILLAGE – NARIDASPUR, P.S. GHOSI, DISTRICT – JEHANABAD. ……….. RESPONDENTS. ----------- 05/ 08.10.2010 Heard Sri Dilip Kumar Sinha, learned Additional Public Prosecutor in support of the present Govt. appeal, which has been preferred for challenging the acquittal of the four respondents by the Additional Sessions Judge-Cum-Presiding Officer, Fast Track Court No. V, Jehanabad in Sessions Trial No.63 of 2005. The respondents were acquitted of the charge under Section 302/34 of the Indian Penal Code by the impugned judgment dated 22.12.2009. Put briefly, prosecution case is that the deceased Yugal kishore Sharma was uprooting grass in a field situated half kilometer south of the village, when the four respondents armed with lathi, Garasa and rifle appeared there and after having caught the deceased assaulted him brutally with lathi fracturing both his hands and legs. The deceased fell down on ground and was brought to the police station for lodging the report 2 and was also taken to the hospital for treatment. Initially the case was registered as Ghosi P.S. Case No. 261 of 2000 under Sections 341, 323, 324, 325, 504/34, 307 of the Indian Penal Code, but after the death of the deceased, supposedly, on the next day of the occurrence Section 302 of the Penal Code was added into the First Information Report. The investigation was completed and charge sheet was laid before the Chief Judicial Magistrate and ultimately on committal of the case to the Court of Sessions the order of acquittal was passed in Sessions Trial No.63/2005 by the learned Court below. During course of the trial the prosecution examined seven witnesses. PW 1 Dipu Kumar, PW 2 Mina Devi, PW 3 Nawal Kishore Sharma, who is also the informant of the case, were supporting the allegations as regards the assault by the respondents on the deceased. PW 4 Doctor Md. Mustaque Mousin, who conducted the post mortem on the death body of Yugal Kishore Sharma, found as many as three lacerations of equal dimensions, i.e., 1/2" x 1/4" x 1/4" on the left angle of the lip, left cheek and left side of cheek below injury 3 no. ii. He also found compound fracture at lower one third of forearm of both radius and ulna, besides finding the other lacerations on middle right forearm, front part of upper one third at right leg and lower part of right leg, besides the compound fracture of left femur at the junction of lower one third and upper two thirds with another lacerated wound measuring 2 ½” x 1/2" x 2 ½” deep. The opinion of PW 4 was that the death was caused on account of shock and haemorrhage leading to C.R. failure within 48 hours of holding of the post mortem examination. The learned trial Judge has noted that the witnesses appeared not making correct statements both on the manner of assault and the place of occurrence. The learned Judge further found that the genesis of the occurrence also appeared varying as stated in the F.I.R. from that which was stated in the protest petition. Besides, the manner of assault as regards use of weapon by the respondents also appeared later improvement by the witnesses as they had not pointed out during their statements before the police, as to which of the respondents had used which weapon in giving the blows 4 to the deceased. The learned trial court, lastly, concluded that it was on record of the case that deceased was a man of criminal antecedent, who had multiple enemies and any of them or most of them could have come together to settle their scores against the deceased. While being taken through the judgment one striking feature which influenced us to discard the evidence of PW 1 was that he claimed taking his bath in river Falgu. This is an universally acknowledged fact that river Falgu does not have flowing water, as such the presence of PW 1 at or around the place of occurrence so as to seeing the occurrence could not be acceptable to us. This was one of the most striking features of PW 1 upon which we were also inclined to out-rightly reject the statement that PW 1 is an eye witness. So far as the PW 2 Mina Devi is concerned, she claimed coming from Hulasganj market. She has been found to be a closely related lady to the deceased and it appears from the discussion of her evidence that her claim was also not acceptable to the learned trial court, because the names of the accused persons had never been stated by PW 2 in her examination by the police under section 161 of the 5 Cr. P.C. resulting in her attention being drawn in para-20 of her cross-examination and that appears true from the evidence of the Investigating Officer. As regards PW 3 Nawal Kishore Sharma, the informant himself, he had denied filing the protest petition, which was available to the court below on record and he had also denied having made any or some of the statements contained in that particular document. One of the most important statements, which the witness denied to have made, was on the genesis of the occurrence. It was stated in the F.I.R. that on the very day of the occurrence the deceased had been threatened by the respondents to be taught a lesson. But in the protest petition, it was stated that such a threat had been held out to the deceased some 15 days prior to the occurrence. Thus, there might be a situation where one could be led to an alternate inference that there could not be any threat coming from the respondents to the deceased. In addition to the above, PW 3 had alleged that Siya Ram Sharma had assaulted his brother with some part of the rifle, while Ram Udgar Sharma had given blow by the blunt part of the Garasa. Likewise, Jitendra Sharma and Ram Daya Sharma had 6 used lathi in giving blows to the deceased. They had also given the details of the parts of body of the deceased where the blows were dealt by the above named four respondents. However, it appears from the discussions of the evidence of PW 3 that the above facts had not been stated by the informant specifically either in the F.I.R. or in his statement before the police and as such the defence cross-examined him to his previous statement, which was ultimately corroborated by the I.O. as also by considering the F.I.R. On the analysis of the evidence as we have done presently, the court below was reaching a conclusion that if this could be the state of witnesses, then it could be very difficult for him to act upon their statements. Besides the court below was noting that the I.O. had stated that in the light of the evidence of the PW 3, the informant that he had never shown the place where the deceased had been assaulted. In his evidence he has pointed out a place different from that which was stated by him in the F.I.R. The Court below has noted that the deceased was a man of criminal antecedent. There was a 7 possibility that some scores were settled by some of the enemies and taking advantage of the situation the informant was coming out to implicate the respondents falsely. We find that the view taken by the court below was also a probable view and the view cannot be said to be perverse. The appeal is of no merit and the same is dismissed. DKS/ (Mridula Mishra, J.) (Dharnidhar Jha, J.)