Criminal Appeal (U/S) No.2 of 1999 in (SLA 99/98) **** Against the judgment, dated 25.08.1998, passed by Sri Sushil Kumar Bhartiya, Chief Judicial Magistrate, Gopalganj, in Trial No. 144 of 1998 **** Hasboon Nesa, wife of Amaluddin Nisa, resident of village Turkaha, P.S. Gopalganj, district Gopalganj .. Appellant Versus 1. The State of Bihar 2. Wakil Mian, son of Dumani Mia 3. Saghir Alam Mian, son of Sehjid Mia 4. Masrufan, wife of Majid Mia 5. Nabijan, wife of Wakil Mian 6. Jakir Hussain, son of Wakil Mian 7. Sehjid Mian, son of late Jan Mohammad Mian 8. Majid Mian, son of late Jan Mohammad Mian 9. Bhodu Mian, son of Majid Mian 10. Kalim Mian, son of Majid Mian 11. Jikrullah Mian, son of Majid Mian .. Respondents **** For the Appellant .. Mr. Arun Kumar Tripathi, Adv. as amicus curiae For the State .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. This appeal arise out of the order of acquittal by Chief Judicial Magistrate, Gopalganj, in Trial No. 144 of 1998. The case 2 arises out of a complaint case bearing Complaint Case No. 206 of 1994. 3. The prosecution case, as alleged that sahan and berahi of the complainant are situated in the land of her house and nad also installed thereon. The said land is in her possession obtained during the bhoodan movement. It has been alleged that the accused persons want to grab that land and on the date of occurrence, dated 25.02.1994, the accused persons variously armed came to her door asked her to vacate the and uprooted the berahi and nad, which led to verbal altercation and accused persons assaulted the informant. She fled away, but, the accused persons followed her and Kalim Mian assaulted her with farsa and other accused persons assaulted by lathi, slaps and fists. When her son came for her rescue then he was also assaulted by the accused persons and it is alleged that accused Kalim Mian snatched her golden chain and kanphool. 4. On the complaint petition, the cognizance taken and the complainant was examined on solemn affirmation, consequently the trial proceeded after framing of the charge. 5. From the perusal of the records it is apparent that this is a case of case and counter case. However, this case proceeded on complaint petition and after framing of the charge, eight witnesses examined. 6. The trial Court, taking into consideration the tact that this is a case of case and counter case and the doctor, who examined the complainant and other injured, has not been examined and though 3 the injury report has been proved, but, the x-ray was taken after two months of the occurrence and, hence, found not reliable. The witnesses though deposed and come with a case that the accused persons uprooted the nad, berahi and plani. If the prosecution case in the complaint petition, itself, is not to the effect of uprooting the nad and, further, the accused, Kalim Mian, assaulted by farsa and further it has been stated that Ali Ahmad has been assaulted causing fracture in the arm. However, there is nothing in the complaint petition about the fracture and the allegation that the left thumb impression on the plain paper has not been taken nor there is any allegation that the same has been used. 7. The defence has also produced Exhibits “A”, “A/2”, “B” and “B/1”, the injury report of the counter case, Exhibit “C”, formal first information report and Exhibit “D”, which is the fardbeyan and it is admitted by the complainant and other witnesses that accused Kalim Mian, Masrufan and her husband have been assaulted and taking into consideration the evidence of that trial the trial Court held that it has not been established and the prosecution has failed to prove the charges against the accused persons beyond reasonable doubts. 8. However, taking into consideration the record of the case under the facts and circumstances since this is a case of case and counter case, the police submitted the final form and the case proceeded, however, the injury report has not been proved by the doctor and the evidence adduced regarding the uprooting of nad, 4 khuta and pilani is against the accused persons in the complaint and, further, the accused persons , who have also filed the counter case have proved the injury and injury having been examined and, hence, taking into consideration the facts and circumstances, I do not find any merit to interfere with the order of acquittal, which has been recorded by the lower Court. 9. This appeal is dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 16th day of November, 2011, N.A.F.R., S.A.