IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.66 of 2011 CHALO YADAV Versus THE STATE OF BIHAR AND ANR. with CR. APP (DB) No.67 of 2011 CHALO YADAV Versus THE STATE OF BIHAR AND ANR. with CR. APP (DB) No.69 of 2011 CHALO YADAV Versus THE STATE OF BIHAR AND ORS. ----------- 2. 24.01.2011. Sultanganj P.S.Case No.15 of 2008 which is the basic prosecution case out of which four Sessions Trials, i.e., 838 of 2008, 935 of 2005, 928 of 2009 and 163 of 2010 were registered on account of as many number of commitment orders passed by the committing Magistrate. We do not have any exact reason as to why was the multiplicity in registering the Sessions Trials out of a single police station case, but we may point out that committal proceedings were undertaken by different Magistrates on different dates in respect of respondents of the three appeals and that could have forced the registration of the cases for trial. We want to note down that the charges under 2 Section 302/34 IPC and Section 27 of the Arms Act against all the accused persons were framed by the learned 3rd Additional Sessions Judge, Bhagalpur so as to trying the respondents. The judgments appeared delivered on 4.10.2010 and the respondents were acquitted of all the charges framed against them. Except Sessions Trial Nos.838 of 2008 and 935 of 2008 which appear clubbed together for the purposes of trial on which there were three accused who are respondents in Cr.Appeal No.69 of 2011, the remaining two trials were in respect of one respondent each, namely, Uday Kumar Yadav and Horil Yadav. Put very briefly, the prosecution case was that while the deceased Bindi Yadav was sitting along with 10-12 others including the witnesses and the informant at the verandah of a temple for discussing the further construction of the roof top of the temple, the respondents of the three appeals along with 10-12 others unknown, arrived there and started indiscriminately firing at persons sitting there. It is definitely alleged against respondent Horil Yadav of 3 Cr.Appeal No.66 of 2011 that he fired two shots in the abdomen of the deceased Bindi Yadav, who ran for life and tumbled over of a heap of stone-chips stored there for carrying out the construction of the temple top. Other accused persons are said to have pumped their shots into the body of the deceased so as to finally killing him. While making the general allegations the informant stated that the respondents were firing shots into the head, fore-head, eyes and mouth of his brother Bindi Yadav due to which he succumbed then and there. While naming the respondents, the informant was also very specific in alleging that the unknown persons were also firing shots and they were further firing shots at the villagers who ran away from the place of occurrence. But none of them sustained injuries. As may appear from the consideration of the judgement which are the basis of the three appeals, that the investigating officer appears to have found four empties of cartridges and some blood stained earth also and, accordingly, he made seizure of 4 those articles by preparing seizure memo Ext-6. The material exhibits, like the empties of the cartridges were also produced in court below as appears from the judgement jointly delivered in Sessions Trial Nos.838 and 935 both of 2008. The investigating officer sent the dead body for postmortem examination. The doctor appears examined in the trials who bears different prosecution witness number in each of the three trials he was deposing to. But in none of the trials he was recording specific finding as to what were the part of the body of the deceased where he found injuries caused by fire arms and whether the injuries which were six in number could cumulatively or individually be the reason for death. Four witnesses including the informant appear examined. The learned trial Judge has recorded the variance in the statements of the witnesses, besides identifying the improbabilities arising out of the statements given by each of them in court. While considering the evidence in the joint trial of Sessions Trial Nos.838 of 2008 and 935 of 2008, we found that a person 5 named Hakim Yadav was named in the FIR was not being named by one of the witnesses, i.e., P.W.1 Nago Yadav @ Digo Yadav. On the other hand, what we find from the judgement rendered in Sessions Trial No.163 of 2010 is that a person who was never named by any one least to talk of being named in FIR was being implicated as an accused by one of the witnesses, namely, P.W.4 Sujit Yadav. The court was finding P.W.4 above named not trustworthy on this account as also on account of the fact that he was telling the court that he could not say whether his earlier statement recorded in a different trial was the true version of the occurrence or the version which he had put forward in Sessions Trial No.163 of 2010 was the true version of the occurrence. Accordingly, the trial court was identifying the improbability which was arising out of the prosecution evidence when the witnesses who were telling the court that 10-12 persons with the deceased sitting in their center were attacked indiscriminately by being fired at by another group of persons comprised of the present set of respondents 6 in the three appeals and 10-12 others unknown. No one else than the deceased was hit by the miscreants. The learned trial Judge was highlighting the improbabilities as to how was it that none among the group except the deceased was receiving even a scratch and even the pillars of the walls of the temple was found not bearing any mark of having received any bullet shot or any other gun shot. As regards the line of evidence the learned trial Judge and ourselves also find that it was the basic case of the prosecution that two shots were fired initially by respondent Horil Yadav into the abdomen of the deceased and thereafter he was fired at by other accused including the some of the unknown persons. There were six injuries recorded by the doctor which included both injuries of entries and exit. We do not have a definite opinion of the doctor as to how many shots could have been fired so as to causing those number of injuries. Besides, the doctor does not say that he indeed found any injury caused by gun shot or by any means on the abdominal part of the deceased or even in 7 the head part of the deceased which is the prosecution evidence coming in Sessions Trial No. 838 of 2008 and 935 both of 2008. P.W.4 Chalo Yadav was stating to the court that Horil Yadav fired two shots in the head of the deceased. The learned counsel appearing for the appellant was controverting the fact that any witness has made the statement that Horil Yadav fired in the head of the deceased. But we go to the judgement recorded by the learned trial Judge, in Sessions Trial No.928 of 2009 to find that in its paragraph-10 which contains the discussion of P.W.4, the witness has stated that the two shots were fired in the head of the deceased. These were the first shots as per P.W.4, if this could be the variance, the witnesses were putting through their evidence in the prosecution story and if there could be serious improbabilities as was recorded by the learned trial Judge in that very judgement or in other two judgments as regards the finding of no marks of violence at the place of occurrence, then in our opinion the court below did not have any other option to discard the prosecution 8 story in its entirety. The learned counsel appearing for the appellant in the three appeals was highlighting the necessity of introducing Section 372 of the Cr.P.C. and was pressing upon us to at least issue notice and call for the lower court records so as to giving full hearing before any judgement was passed by us at the very admission stage of the present set of appeals. In that connection he was pointing out that the legislature was shaking itself off the colonial hangover by giving a statutory right to the informant or the victim of an offence for presenting appeals before the appropriate forum against judgement of acquittals. We do appreciate the substantial contention raised before us by the learned counsel for the appellant and we do also recognize that right created by the legislature after so many decades of ourselves attaining independence and taking birth as a democracy, but at the same time want to note that mere right to file an appeal may not give a right to any one to waste the court’s time. A right could always 9 be meaningful, if the grounds are shown to the courts for exercising its jurisdiction to interfere with an order of acquittal. Once an order of acquittal has been passed the theory of innocence which is always available to the accused is further strengthened and unless some perversity is shown to the court it will simply be a futile statutory right to be recognized. With these observations, we find no merits in these appeals and, accordingly, they are dismissed at the admission stage itself. B.Kr. ( Mridula Mishra,J. ) ( Dharnidhar Jha,J.)