CRIMINAL APPEAL No.12 OF 1993 (U/s.) [Appeal against the judgment and order dated 2nd December, 1992 passed in Complaint case No.34C of 1987 G.R.case No.166 of 1992 by Sri B.N.Pandey, Judicial Magistrate, Lakhisarai] ******** MD. SHAHABUDDIN SON OF ABDUL QAYYUM, RESIDENT OF BALGODAR, P.S. LAKHISARAI, DISTRICT MUNGER -----------Appellant Versus 1. THE STATE OF BIHAR 2. MD. ALLAUDDIN S/O AAINUDDIN 3. MD. AQSHEKH SON OF LATE YASIN 4. BIBI ASGHARI W/O AAINUDDIN 5. BIBI SAHEIHA W/O ALLAUDDIN 6. REGANU DAUGHTER OF AINUDDIN, ALL RESIDENTS OF VILLAGE BALGUTHUR, P.S. LAKHISARAI, DISTRICT MUNGER ---------------------------Respondents For the Appellant : Mr. S. Raja Ahmad, Advocate For the State : Mr. Aman Kr. Singh No.I, A.P.P. ******** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: This appeal has been filed against the judgment of acquittal dated 2.12.1992 passed by the Judicial Magistrate, Lakhisarai in Complaint case No.34C of 1987 G.R.case No.166 of 1992 by which the opposite party nos.2 to 6 have been acquitted of the charges u/ss.448, 323, 147 and 452 of the I.P.C. The case of the prosecution according to the complainant Md. Shahabuddin, in short, is that on 19.3.1987 the opposite party nos.2 to 6 entered into the house of the complainant and assaulted the mother of the complainant - 2 - with fist and slaps, whereas the opposite party no.3 assaulted the mother of the complainant with lathi and also twisted her hand. The appellant to prove its case examined five witnesses, whereas the opposite parties examined one witness and proved Ext. A, which is the case instituted by them. P.W.1 Md. Gulab Rasul was the maternal uncle of the complainant, whereas P.W.2 Umran Nisha is the mother of the complainant. P.w.3 Md. Shahubuddin is the complainant himself, whereas P.W.4 is Dr. Ramchandra Singh, who examined P.W.2 the injured. P.W.5 has proved a written report given to the police. The trial court while considering the prosecution case considered the fact that the witnesses were all related. P.W.1 has moreover admitted the factum of a case between the parties. The trial court also considered the fact that even though there were independent witnesses to the occurrence but none of them have been examined by the prosecution. It was an admitted position that a proceeding u/s.107 Cr.P.C was pending between the parties and in fact the prosecution has been noticed to give a show cause. There was material contradiction with regard to the manner of assault upon P.W.2 as narrated by the witnesses, which made the prosecution case highly doubtful in the background of strained relationship between the parties. Taking into - 3 - consideration such facts the trial court acquitted the opposite party nos.2 to 6. On going through the evidence, I find that the trial court was fully justified in concluding that the prosecution case was highly unbelievable, untrustworthy and in the background of 107 Cr.P.C proceeding pending between them, for which the prosecution has been noticed, the opposite party nos.2 to 6 deserved to be acquitted. In the result, I see no merit in this appeal and the same is dismissed for the reasons stated above. Patna High Court Dated, 27th of November, 2009. NAFR/ Narendra/ ( Anjana Prakash, J. )