IN THE HIGH COURT OF JUDICATURE AT PATNA G. APP. (DB) No.19 of 2010 THE STATE OF BIHAR ………….. Appellant. Versus NAND KISHORE MAUAR, SON OF LATE MUNESHWAR MAUAR, REISENT OF VILLAGE – ARAI, P.S. DAUDNAGAR, DISTRICT – AURANGABAD. ………….. Respondent. ----------- 03/ 22.04.2010 Heard the learned lawyer for the appellant. The prayer has been made for granting leave to appeal against Nand Kishore Mauar, the sole respondent. The trial court has discussed the case of the appellant in paragraphs 35 to 41 and it has come to the opinion that the prosecution has not been able to prove the initial role attributed to the appellant. The other accused persons have been found guilty of the offences they have committed. It would be relevant to quote paragraphs 35 to 41 of the impugned judgment :- “35 The 2nd set of the accused Nand Kishore Mauar who is contesting the case separately from other accused persons since the beginning of the trial his learned lawyer Sri Awadh Kishore Pd. Singh had argued that in the fard-beyan there is only allegations against this accused that he gave order to make firing and nothing more. On this point the learned defence lawyer had argued that there is full contradictions on this point because 2 in the fard-beyan it is mentioned that Nand Kishore Mauar stated that “Maar do goli” but the P.W. 1, P.W. 2 have not given evidence that Nand Kishore Mauar had given any order to assault whereas the P.W. 3 has stated that “ Nand Kishore Kahe ki dekhte kya ho goli maar do” and the P.W. 6 has stated that Nathun @ Nand Kishore stated that “Aa Gaya Shala Maar do goli”. The P.W. 7, 8, 9 have not given any such evidence against the accused Nand Kishore Mauar. Whereas the P.W. 10 has stated that when he came out and asked that what is matter then Nand Kishore Mauar stated to make firing. So out of 12 prosecution witnesses only 3 have stated that Nand Kishore Mauar gave order to make firing but the statement of giving order is different from one witness to another and the style of saying is also different because one witness the P.W. 6 whose statement on this point has been written in the deposition in inverted comma is that “Aa Gaya Shala Maar do goli”. Whereas the other two witnesses have not stated in the same language and their way of style of saying of giving order is different. As allegations against this accused is only this that he gave order so the evidence of the witnesses on this point should be strictly looked in to and from the statement as mentioned above is totally vary to one witness to another and out of 12 prosecution 3 witnesses only 3 have stated so it clearly creates doubt that this accused has given any such order to make firing. There is no allegations against him except this. The allegation of giving order becomes also falsified from the evidence of P.W. 10 (informant) para 23 in which this witness has stated that “Maine Puchha to goli maar kar bhagne Lage”. I am convinced with the argument placed by the learned defence lawyer. 36. The learned defence lawyer on behalf of the accused Nand Kishore Mauar further had argued that as per statement made in the fard-beyan several people were chasing to the accused persons but none had stated that they caught- hold to Nand Kishore Mauar and there is only evidence that the injured Arvind had chased and caught-hold to Manoj Sharma. The learned Addl. P.P. also conceded this fact that there is some differences of wording between the prosecution witnesses about giving order and this accused was also not caught-hold by any person who were chasing. 37. The learned defence lawyer of the accused Nand Kishore Maure further had argued that the accused Manoj Sharma and Nand Kishore Mauar are of different family having different sect of caste. In this connection, he pointed out the evidence of P.W. 1 para 22 in which this witness has stated that Nand Kishore Mauar and Munesh 4 Mauar are Anaich Bhumihar whereas Kaushal and Manoj are Korainch Bhumihar. The P.W. 3 in his cross-examination para 2 has also accepted that Nand Kishore Mauar and Manoj Sharma are different sect of caste. The learned Addl. P.P. also conceded this fact. After going through the argument and evidence placed above I find that the one set of accused Manoj Mauar and the 2nd set of accused Nand Kishore Mauar are of different sect and family. 38. The learned defence lawyer on behalf of the accused Nand Kishore Mauar submitted that the basic root of the occurrence according to the fard- beyan and evidence of the prosecution witness is that the informant and others have given evidence in the murder case of Saroj Sharma and due to this enmity this occurrence has taken place. The P.W. 10 who is the informant of this case has also stated in his examination in chief para 4 that the reason behind the occurrence is that prior to one year before of this occurrence he along with his father were witness in the murder case of Saroj Sharma and due to this enmity the murder of his brother was committed. But the P.W. 10 informant himself in para 6 has stated that in the murder case of Saroj Sharma the accused Nand Kishore Mauar and his family member were not implicated. The P.W. 6 in para 21 has stated that in his knowledge there was no any previous 5 enmity with the accused Nand Kishore Mauar. The P.W. 3 in his cross-examination para 2 has stated the Nand Kishore Mauar and his family members were not an accused in Saroj Sharma murder case. The learned defence lawyer further had pointed out the Ext. 6 filed on behalf of the prosecution itself submitted that in Daudnagar P.S. Case No. 2/2000 the accused Nand Kishore Mauar or his family member are neither the accused nor the witnesses so the whole reason behind the occurrence and motive of the occurrence along with genesis fails. The learned Addl. P.P. also conceded that in the evidence of the prosecution witnesses it has come that the reason behind the occurrence is being a witness of the informant and his father in the murder case of Saroj Sharma but the accused Nand Kishore Mauar is not an accused in the murder case of Saroj Sharma. After going through the argument placed on behalf of both the sides I find that in the fard-beyan the motive behind the occurrence is that the informant and his father were witness in the murder case of Saroj Sharma and they have given their statement and due to this enmity the instant occurrence had taken place but in Saroj Sharma’s murder case Nand Kishore Mauar and his family member are not an accused. There is no any previous enmity with Nand Kishore Mauar and the family of the informant and also the caste 6 sect of Manoj Sharma and Nand Kishore Mauar is different and both are of different family so the genesis, motive in relation to the accused Nand Kishore Mauar totality false. The prosecution has totally failed to show that Nand Kishore Mauar had any concerned with Manoj Sharma either by friendship, family relation or any way. 39. The learned defence lawyer on behalf of the accused Nand Kishore Mauar further had argued that the contradictory statement of the prosecution witnesses about the running away of this accused also makes the charge against him as doubtful because the another fact has been placed by the prosecution that this accused was also running away from the alleged Ist. place of occurrence. In this respect, he pointed out the evidence of P.W. 2 para 2 in which this witness has stated that in running away, in forward there was Nathun and behind to him Muneshwar and behind to him Kaushal and in back of all there was Manoj. Whereas the P.W. 8 in para 19 has stated that Manoj was running forward from all and thereafter Kaushal and thereafter was Nand Kishore @ Nathun Mauar and the P.W. 10 in para 26 has stated that during the chase Nand Kishore was running forward from all thereafter was Kaushal. On the above the learned defence lawyer submitted that in fact these witnesses had not seen to Nand Kishore Mauar and due to this reason 7 they have given contradictory statement to each other which creates doubt about the presence of the accused Nand Kishore Mauar in the alleged occurrence. The learned Addl. P.P. in this regard submitted that this fact cannot make the case suspicious against this accuse and such contradictions is natural. After going through the argument placed on behalf of both the sides I find that all the prosecution witnesses are interested so their evidence should be scrutinized with conscious to get the credibility of those witnesses and when the implication of an accused who had not participated in the occurrence and had been shown as running away. In such a circumstance this contradictory statement makes the charge against this accused as doubtful. 40. The learned Addl. P.P. had argued that the accused Nand Kishore Mauar was order giver so under the purview of common intention he is equally liable with other accused persons. On the other hand, the learned lawyer of the accused Nand Kishore Mauar had argued that the motive behind the occurrence has failed because this accused or his family member are not an accused in Saroj Sharma murder case, this accused is not family member of other accused persons, this accused is of another sect of the caste from the other accused persons and the evidence of the witnesses on the point of giving order is 8 contradictory to each other, there is no any allegation against this accused that he had in any way assaulted or made any kind of firing and also on the point of chasing the statement of the important prosecution witnesses is contradictory to each other so in such a circumstance common intention will not apply. After going through the argument placed on behalf of both the sides I find that the allegation of giving order by this accused has not been found true and this accused has no any enmity with the informant and his family and has no family relation with other accused persons who have not been found guilty, the motive behind the occurrence has totally failed against this accused and the manner of chasing has also contradicted from witness to witness of the prosecution. On general, vague, inconsistent, embellished evidence of the prosecution witnesses this accused cannot be roped in principle of common intention. 41. On considering the whole aspect I find that the prosecution has not been able to establish the charge u/S. 302 / 34 I.P.C. against the accused Nand Kishore Mauar beyond reasonable doubt in the manner alleged and this accused is entitled for benefit of doubt.” It appears that the trial court in the above paragraphs of the judgment has discussed and 9 distinguished the case of the appellant from the case of others. Considering this, we are not inclined to grant leave to appeal. Accordingly, this appeal is dismissed. No doubt a case should not be normally dismissed on the point of limitation but in view of the fact that the case itself has been dismissed on merit, there is no point of allowing the appellant to urge on the point of limitation. Therefore, limitation petition is also dismissed. Kundan (Shyam Kishore Sharma, J.) (Gopal Prasad, J.)