IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.1083 of 2010 SHRI NIWAS MISHRA, SON OF LATE HARENDRA MISHRA, RESIDENT OF VILLAGE – SONBARSA, POLICE STATION – SHAHPUR IN THE DISTRICT OF BHOJPUR. …… APPELLANT. Versus 1. AMAR NATH MISHRA, SON OF VIJYANAND MISHRA, RESIDENT OF VILLAGE – SONBARSA, POLICE STATION – SHAHPUR IN THE DISTRICT OF BHOJPUR. 2. THE STATE OF BIHAR …………. RESPONDENTS. ----------- 03/ 29.09.2010 Informant of Shahpur P.S. Case No. 17 of 1987, namely, Shri Niwas Mishra has filed this appeal against the judgment and order dated 31st May, 2010 passed by 2nd Additional Sessions Judge, Bhojpur, Ara in Sessions Trial No. 164A of 1988, whereby Respondent Amar Nath Mishra has been acquitted of charge under Section 307 of the IPC and 27 of the Arms Act. The grounds, which have been taken for challenging the impugned judgment of acquittal, are that the evidence adduced by the prosecution witnesses has illegally been disbelieved and they have not been scrutinized with care and caution. The FIR of Shahpur P.S. Case No. 17 of 1987 was instituted on the basis of written report of one Beyas Mishra (PW 2) on 4.2.1987 with regard to an occurrence which took place on 19.1.1987 at 6.30 p.m. in the evening. The informant is not the eye witness to the occurrence rather on 2 the date of occurrence he was on his duty in Indian Air Force at New Delhi. At his place of work he came to now through telephone regarding injuries caused to his uncle in the alleged occurrence, he came to Varanasi where his uncle was undergoing treatment at the relevant time. He came to Varanasi on 25.1.987, where his uncle was being treated for his injuries, there he came to know about the occurrence and thereafter he submitted his written report to the S.P., Ara for institution of the case under Sections 307,324 of the IPC & 27 of the Arms Act. The case of prosecution in the FIR is that on 19.1.1987 at about 6.30 in the evening the uncle of the informant, namely, Narendra Mishra along with Sri Niwas Mishra (PW 1) was coming with one bundle of grass from his field, for his Mare. While he reached near Kalisthan in his village, Kamlakant Mishra, Kharga Nand Mishra and Amar Nath Mishra were standing there. Kharga Nand Mishra and Kamlakant Mishra exhorted, on which Amar Nath Mishra fired at Narendra Mishra (not examined) which caused injury at his back. The elder brother of the informant, came runningly to inform the family members and villagers, upon which Raj Nath Mishra came there and tied the injuries 3 of the injured with towel and he was brought to police station. The officer-in-charge of the police station upon seeing the injury told them to proceed to the Ara for treatment and also give assurance that later on he will institute a case. At Sadar Hospital the statement of injured was recorded in the form of Sanaha., but the FIR could not be instituted as the condition of injured became serious and he was taken to Varanasi for his treatment and got admitted at Kabir Chaura Hospital. The FIR was instituted on 4.2.1987 after 16 days of the occurrence with an explanation of delay. The case was investigated by the Officer-in-charge of the concerned police station and on submission of charge sheet, cognizance was taken on 21.1.1988 and the case was committed to the Court of Sessions on 4.1.1988 vide Sessions Trial No. 164 of 1988. The prosecution examined three witnesses. The injured could not be examined as by that time he had died. The I.O. of the case was also not examined. The examined witnesses are, Sri Niwas Mishra (PW 1), who is said to be accompanying the injured at the time of occurrence. PW 2 is the informant of the case, who was not present at the place of occurrence and PW 3 Dr. Surendra Prasad Srivastava had 4 examined the injured at Sadar Hospital, Ara. The evidence of these witnesses has been elaborately discussed and considered by the trial Judge. PW 1 Sri Niwas Mishra is the son of the injured Narendra Mishra. He has stated that at the time of occurrence he was coming with his father when Amar Nath Mishra fired at his father on being exhorted by Kharga Nand Mishra and Kamlakant Mishra. Firing made by Amar Nath Mishra caused injury on the right side of his chest. The accused persons thereafter fled away from the place of occurrence. He raised alarm on which Dasrath Kanu and Narayan Mishra came there and they brought the injured to the Hospital at Primary Health Centre, Shahpur. Since the doctors were on strike, as such he was brought to Sadar Hospital, Ara, where his father was treated and from where he was brought to Varanasi for his treatment. His cousin (PW 2) came to Varanasi and he lodged the FIR. PW 1 has given a motive for the alleged occurrence stating that due to land dispute the occurrence took place. PW 1 has also disclosed that the place where his father was shot by the accused Amar Nath Mishra is adjacent to the houses of Naga Tiwary, Banshropan Tiwary, Jhagru Yadav and Dasrath Kanu. None of these persons have been examined by the 5 prosecution to prove the accusation made by the prosecution against the accused. The doctor (PW 3) Surendra Prasad Srivastava has simply stated that on 19.1.1987 he examined Narendra Mishra and found one lacerated wound ¼” x ¼” x muscle deep on the back right side of chest. The x-ray was also done of such injuries and in the opinion of the doctor the injury was grievous. No such x-ray was produced before the court. The trial court has taken note of this fact that though as per the evidence of PW 1 the injured was not unconscious during the period of treatment at Ara, but his statement was not recorded by the police, who as per the evidence of PW 1 had arrived at Ara Sadar Hospital and Sanaha entry was made at the relevant time. That Sanaha entry has also not been produced before the court during trial to show that immediately after the occurrence any steps were taken by the injured and his family for institution of the case. The trial court has also taken, a serious note of this fact that Sanaha entry has not been brought before the court, it could have given credence to this fact that immediately after the occurrence the name of accused persons were revealed by the prosecution and even if FIR was instituted after much 6 delay there was no fabrication or concoction, in order to implicate such persons, whose involvement otherwise has become doubtful. The delay could have been explained in case Sanaha entry would have been produced. So far PW 2 is concerned, he is neither eye witness nor he had any knowledge about the occurrence, as such not much weightage could be attached to his evidence. From perusal of discussion made in the impugned judgment and the finding recorded by the trial court, we do not find that the judgment is perverse or requires any interference by this Court. The judgment of acquittal has been passed by the trial court on proper consideration of the facts and law applicable in this case. It is not a fit case in which the judgment of acquittal can be reversed. Accordingly, this appeal is dismissed. DKS/ (Mridula Mishra, J.) (Dharnidhar Jha, J.)