IN THE HIGH COURT OF JUDICATURE AT PATNA G. APP. (DB) No.40 of 2008 THE STATE OF BIHAR-----------------------APPELLANT. Versus 1. DASHRATH DHARI, SON OF BANGALI RAM 2. RANGLAL DHARI, SON OF CHOTAN RAM 3. CHAMAN DHARI, SON OF ANIK RAM 4. MAHESH DHARI, SON OF LAKHAN RAM 5. LAKHAN DHARI, SON OF KISHUN RAM 6. UPENDRA DHARI, SON OF LARIK RAM, R/V PEUNI, P.S. SARMERA, DISTRICT NALANDA 7. KUMAR DHARI, SON OF GAJADHAR RAM 8. KANTA DHARI, SON OF BIDESHI RAM 9. KHIRAL DHARI, SON OF JHINGAN RAM EXCEPT RESPONDENT NO.6, ALL RESIDENTS OF VILLAGE BHADAULI, P.S. KORMA, DISTRICT SHEIKHPURA------------------------RESPONDENTS. ----------- 09. 22.01.2009. Heard. This Government Appeal is against the judgment dated 11.6.2008 passed by the Additional Sessions Judge, F.T.C.-V, Sheikhpura in Sessions Trial No. 1220 of 1997/ Trial No. 24 of 2008 whereby the respondents/ accused, who were tried on the charges under Sections 307, 148, 149 and 326 of the Indian Penal Code were acquitted of the charges because the learned trial court on consideration of the evidence produced by the prosecution did not find the charges proved beyond shadow of doubt. The informant, Lal Bihari stated in his First Information Report that on 5.12.1995 at about 5 p.m. while he was feeding his cattle outside his cattle shed, the respondents/accused variously armed, came there and on exhortation of respondent Lakhan Dhari and Ranglal Dhari, respondent Dashrath Dhari fired a shot from his rifle hitting him(informant) on his back. It was also stated that the respondents also fired 5-6 other shots and fled towards north and that - 2 - in the meantime police had also come and had started chasing the culprits. As many as eight witnesses were examined on the point of occurrence and out of them P.W. 8 was the informant himself. P.W.-9 was the Doctor, who had found a gun shot wound of entry on the back side and wound of exit on the front side of the shoulder. P.W. 10 was the Investigating Officer. The material points which weighed with the learned trial court for coming to the conclusion of acquittal of the respondents was that besides the informant no other witnesses, who were examined as independent witnesses stated about the assault caused at the hands of the respondent Dashrath Dhari as alleged, rather those witnesses stated that they had seen the respondents fleeing away from a distance of 100 yards to 200 yards. The trial court discussed that the occurrence took place in the evening hours in the month of December at 5 p.m. and in the month of December in the evening at 5 p.m. it was difficult to accept that identification could be made from such a distance. The trial court also discussed that the informant stated in his evidence that before causing the assault, an altercation with the respondents had also taken place. Therefore, the trial court discussed that in a situation when there was altercation, it was quite natural and probable that some villagers must have come there and they would have seen the actual occurrence of assault but there is no witness to that nature. Besides this there is also an important point which brings the allegation under the shadow of doubt is that the assault is said to - 3 - have been caused on the back of the informant from back side and the informant claims that he had seen the assailant i.e. Dasrath Dhari causing rifle shot on his back. It is not safe to believe the claim of the informant that he could have identified the assailant, who had assaulted by firing the shot from back side. Taking into consideration the facts and circumstances, as above, the learned trial court was not satisfied that the prosecution was able to prove the charges beyond shadow of doubt. On our careful consideration over the matters, we do not feel inclined to admit this Government Appeal on such grounds as urged by the learned APP that there are reasonable grounds for such purpose. In such view of the matter, we refuse leave to appeal and this Government Appeal stands dismissed at the stage of admission. Rajesh/ (C. M. Prasad, J.) (V.N.Sinha,J.)