IN THE HIGH COURT OF JUDICATURE AT PATNA G. APP. (DB) No.30 of 2008 THE STATE OF BIHAR ----Appellant. Versus 1. MD.ASLAM, 2. Md. Isamtullah, 3. Md. Manjarul, 4. Md. Asrar, 5. Abdul Ahmad, 6. Md. Atakur Rahman, 7. Md. Ansar, 8. Rahmtullah, 9. Md. Zamil Akhtar, 10. Md. Nazim, -------- Respondents. For the Appellant: Mr. Prasoon Sinha, ---- G.A.-3 For the Respondents: Mr. Rajendra Kishore Prasad, Mr. Chandra Bhushan Das, ---- Advocates. 7 12.01.2009 On hearing the learned counsel for the appellant and the respondents, the prayer for condoning the delay of 58 days in filing of this government appeal as made under I.A. No.1351 of 2008 is allowed. After condoning the delay we have heard this government appeal at the stage of admission. The respondents were tried for the charges under Sections 147, 148, 302/149 of I.P.C. and the learned trial court did not find the charges proved and the respondents were acquitted. The informant Md. Aziz is the son of the 2 deceased Md. Zafir. Vide Prosecution case the informant had gone out in the night at about 9.00 P.M. to watch the Mango Orchard of Laddu Babu and his father (deceased) had also gone to watch his own orchard situated adjacent to the orchard of Laddu Babu. In the night at about 12 ‘O’ Clock, the informant heard some sound coming from the orchard of his father and hearing such sound he went into the orchard and flashing his torch light saw that the respondents, who were armed with Lathi, Bhala and Grasa were assaulting the deceased. The informant says that he cried whereupon others also assembled and they saw the deceased there. During trial the informant was examined who testified that on flashing the torch-light he had seen and identified the respondents assaulting the deceased. But in his evidence the informant also stated that his father (deceased) was sleeping on another cot by the side of his cot (informant’s cot) situated in the orchard of Laddu Babu. During evidence the I.O. deposed that he had seized the torch of the informant but the torch was not produced before the trial court. The I.O. also deposed that 3 he had verified from Laddu Babu, who had stated and also given in writing that in the night of occurrence he had not engaged the informant for watching his orchard. The learned trial-court considered the aspect of this case that when Laddu Babu stated about not having engaged the informant for the purpose of watching his orchard the presence of the informant in the orchard at the relevant time during watching of his orchard as per the prosecution becomes doubtful. It was also considered that the very means of identification i.e., the torch was not produced before the Court. Learned counsel for the respondents also argued that the informant says in his F.I.R. that the deceased was sleeping in his own orchard for watching the same but in his evidence the informant contradict that the deceased was sleeping in the orchard of Laddu Babu by the side of his (informant’s) cot. It was also submitted that the informant says that he flashed his torch-light and saw 11 respondents with their specific weapons with specific respondents assaulting deceased but the occurrence could not have been seen in just a flash of torch light with such 4 detailed description. It was also submitted that the informant does not say he had taken any step for saving his father from the assault. Further submission was that the informant is the only eyewitness on the point of assault but his presence at the P.O. becomes doubtful in view of the evidence of the I.O. that Laddu Babu, the owner of the orchard had stated that he had not engaged the informant for watching his orchard. There are some witnesses who say that on hulla they had rushed towards the orchard and they had seen some of respondents fleeing away but their evidence is not specific and they do not say anything about the assault having been caused to the deceased at the hands of the respondents. Considering the materials as above and also discussed by the learned trial-court, we do not feel satisfied that this is a fit case for admitting this government appeal. In such view of the matters this appeal is dismissed at the admission stage. Mkr. (C.M. Prasad, J.) (V.N. Sinha, J.)