IN THE HIGH COURT OF JUDICATURE AT PATNA SLA No.79 of 2009 MANIK LAL MAHTO son of Late Jagdip Mahto, R/0 village Belari, P.S.Ujiarpur District Samastipur… petitioner/appellant. Versus 1.SHASHINDRA NATH MISHRA @ S.N.Mishra son of Late Nagendra Nath Mishra, Inspector R.P.F., E.C. Railway, Hazipur (Earlier N.E.Ralway.,R.P.F. Barauni) Presently posted as Inspector of R.P.F. at Hajipur.District Vaishali (Accused). 2.The State of Bihar….Opp. Parties. ----------- 3. 12.01.2010 This SLA was heard on the point of admission. This application is for leave to appeal against the judgment of acquittal as passed by the Judicial Magistrate, 2nd Class, Dalsingsarai on 6th June 2009 under C.R.No. 276 of 1992, Tr. No. 371 of 2009 whereby the O.P.No.1, Inspector of R.P.F. who had been put on trial on the charges under Sections 379, 342 and 385 IPC, has been acquitted. The petitioner was complainant before the court below and his case was that on 4th September 1992 at 8:00 A.M. the O.P.No.1 along with two constables came to his grocery shop and abused him stating that he was engaged in dealing in stolen property of the railways and that he intended to make a search of the shop for searching stolen property. Further case of the complainant was that the O.P.No.1 searched the Cash Box but it was found empty and that thereafter the O.P.No.1 searched the shop, but nothing incriminating was found. It was also alleged that the O.P.No.1 took out Rs.5,000/-(five thousand) from the pocket of the complainant and thereafter he got him seated on 2 Police Jeep and took him to the Police Station. It was also the complainant’s case that at about 10:00 A.M. his brother, on learning about the occurrence, came to the Police Station on a moped and asked the Police Officials as to why he (complainant) was detained there but the Police Officials abused him and his moped was detained by them . It was also alleged that O.P.No.1 did not return the Cash amount of Rs.5,000/- nor the moped valued at Rs.8,000/-. The complainant examined himself as P.W.5. His brother who is said to have gone to the P.S. on moped was examined as P.W.4. Besides this, three other witnesses were also examined out of whom P.Ws.1 & 2 stated about the occurrence said to have taken place at the Police Station. While disbelieving the case of prosecution, the learned court below relied on several infirmities in the prosecution case. Firstly the trial court mentioned that the petitioner-complainant says that Rs.5,000/- was taken from his pocket but in Para-18 of his cross-examination, he stated that the cash of Rs.5,000/- was in the cash box. Learned trial court discussed that this is a serious contradiction that at one place the money taken is stated to be in the pocket and at another place it is stated to be in the cash box. It was also considered that the money is stated to be the sale proceeds of the shop. Learned trial court considered that the petitioner-complainant’s shop was a small village grocery shop and the occurrence is said to have taken place at 8:00 A.M. 3 and it is not believable that in such a small grocery shop the sale transaction will be of Rs.5,000/- at 8:00 A.M. which is the time of opening of the shop. The learned trial court also believed that it is also out of imagination that such a small grocery shop keeper would have kept Rs.5,000/- over night in the cash box as a sale proceed in the previous day’s sale. The learned trial court considered that P.W.2 deposed as an eyewitness stating about the occurrence taking place inside the shop, but he has stated that his (P.W.2’s) shop situated beside the shop of complainant. The learned trial court discussed that the shop of P.W.2 does not situate in front of the complainant’s shop nor P.W.2 was standing in front of complainant’s shop, but he was in his shop situated beside the complainant’s shop, so there was no occasion or possibility for him to have seen or witnessed the occurrence taking place inside the complainant’s shop. Taking this reasonable approach the learned trial court did not believe the evidence of P.W.2 as a truthful eye witness. Learned trial court also considered that the complainant says that his brother’s i.e. P.W.4’s moped was detained at the Police Station and it was not returned to him but the complainant never disclosed in his complaint petition about the registration number of the moped. Any paper regarding the vehicle was not produced either regarding the purchase of the vehicle or the registration of the vehicle in the name of P.W.4. 4 The complainant claimed that the moped belonged to his brother, P.W.4 and he had driven it to the Police Station where it was detained. But any driving license was also not produced before the trial court in order to show that the vehicle was being driven by P.W.4. Considering these infirmities and others the learned trial court did not feel satisfied about the testimony and veracity of the complainant’s witnesses and its case. Ultimately, the judgment of acquittal was passed. In view of the discussions as above, I find no scope to interfere with the judgment of acquittal passed by the trial court. Therefore, this S.L.A. is dismissed at the stage of admission itself. Jay/ (C. M. Prasad,J)