GOVT. APPEAL (DB) No.58 OF 1988 Against the judgement of conviction and order of sentence dated 28.6.1988 passed by 3rd Additional Sessions Judge,Arrah in Sessions Trial No.305 of 1985. STATE OF BIHAR-------------------------Appellant Versus 1.BIRENDRA SINGH, 2.RAM PEYAR SINGH, 3.TEJ NARAYAN SINGH, 4.VIJAI SINGH & 5.SURENDRA SINGH --------------------- Respondents For the State:- Sushri Shashi Bala Verma, A.P.P. For the Respondents:- Sri Kanhaiya Prasad Singh,Sr.Advocate Sri Atal Bihari, Advocate. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ. The present Govt. appeal questions the order of acquittal passed by the learned 3rd Additional Sessions Judge, Ara on 28.6.1988 in Sessions Trial No.305 of 1985 by which the five respondents were acquitted of charges under Sections 302/149 and 148 and 27 of the Arms Act. 2. The case related to the murder of one Shatruhan Singh when he had been detained while he was returning along with others after attending a feast. It was alleged that the respondents caught hold of the hands, feet or waist of the deceased Shatruhan Singh while respondent, Birendra Singh cut his throat. It is alleged that at that time Rampeyar Singh was armed with a gun and he was ordering the accused persons to cut the neck so that the - 2 - said Shatruhan Singh was not left alive. 3. The fardbeyan of Bishuni Singh(P.W.7)was recorded and the investigation was initiated, after close of which, the respondents were sent up for trial. Nine witnesses were examined in course of the trial and they stated that they had seen the occurrence in the flash of the torch light and that respondents had assaulted the deceased at different parts of his body, like, head and hands, besides telling the learned trial court that the neck of the deceased was cut by respondent Birednra Singh. 4. The learned trial Judge held that the story of seeing the occurrence at the flash of torch light was not acceptable inasmuch as no torch was produced or seized by the police officer. It was further held that the parties were deeply inimical towards each other and the probability could be that the respondents had falsely been implicated. It was further held by the learned trial Judge after appreciating the evidence of witnesses, like, P.Ws.2, 5 and 7 that they had developed the story by introducing the same in their evidence. The story of multiple blows given by respondent Birendra Singh to the deceased was developed only after the prosecution had considered the postmortem examination report which had found more than one injury on the dead body. The learned trial Judge held that the initial story of one blow by - 3 - which the neck of the deceased was cut, appears given a go-by by the prosecution witnesses and further that the witnesses were improving upon their evidence from stage to stage. 5. We have considered the findings recorded by the learned trial Judge in the light of the evidence available to us and we find that the trail of blood was found flowing up to a distance of 6” at the place of occurrence which indicated that the neck had been cut only when the deceased was lying on the place of occurrence but the witnesses have stated that while the deceased was standing up, he was given several blows by the respondent Birendra Singh on his head and other parts of his body as a result of which, he fell down and thereafter, his throat was cut. This improvement made by the witnesses in their testimony has been found not stated to P.W.9, the investigating officer of the case who has categorically stated that the witnesses had not stated the above fact to him. The other circumstance, which we also find from the evidence, was that the deceased was surrounded or captured by the respondents in the manner as alleged by being caught by organs of the body who, curiously enough, does not appear raising any alarm so as to soliciting help from others or seeking intervention of others to save him. Some of the members of the family or the neighbours, like, Buti Singh, - 4 - Sitapati Singh, Umesh Singh had also not been examined. The witnesses stated that it was not that they had flashed their torch lights once to see the occurrence rather they kept flashing their torch lights at the time of the occurrence so as to see the whole of it. The learned trial Judge found it not acceptable inasmuch as the witnesses themselves were stating that one of the accused, namely, Rampeyar Singh was holding a gun and was threatening others. If Rampeyar Singh was holding a gun and was bent upon ensuring that Shatruhan Singh was murdered, he would not have allowed the witnesses to flash the torch light so that they could see the occurrence and depose in court. We find the findings recorded by the learned trial Judge also a possible finding and the view taken by the learned trial Judge a probable view and as a result of which, we find no merit in the Govt. appeal and the same is dismissed. Patna High Court, Dated, the Ist of April, 2010, Brajesh Kumar/NAFR. ( Dharnidhar Jha, J. ) ( Akhilesh Chandra,J. )