IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1207 of 2008 RAM PRASAD MAHTO, S/o Late Mahadeo Mahto, R/o Dharmshala Road, Barbigha, P.S.-Barbigha, District-Sheikhpura …. Petitioner Versus 1. STATE OF BIHAR 2. Umesh Kumar @ Chhabila, S/o Parmeshwar Sao @ Munshi Jee 3. Babloo Sao, S/o Banshi Sao. Both residents of village-Golapar, Barbigha, P.S. - Barbigha, District-Sheikhpura …… Opposite Parties. For the Petitioner : Mr. Ashutosh Kumar, Advocate. Mr. Ganesh Prasad Singh, Advocate. Mr. Atal Bihar, Advocate. For the State : Mr. Atul Chandra, Addl. P.P. ----------- 2 28-06-2010 Heard Both Sides. Petitioner, who is informant, is aggrieved by the judgment and order of acquittal dated 27.09.2008 passed by learned Additional Sessions Judge-cum-Fast Tract Court No.-VIII, Sheikhpura in S.T. Case No. 74/2007(Trial No. 71/08) whereby the opposite parties herein (accused of Barbigha P.S.Case No. 311/02) were tried and acquitted of the charge(s) punishable under sections 302 and 201/34 of the Indian Penal Code. In Relation to an occurrence, that had taken place on 10- 11-2002, initially a U.D. case was recorded at the instance of the informant (PW-9). Investigating officer found the case made out in the U.D. Case to be true. Five days later, the present F.I.R. was lodged alleging therein that one of the deceaseds (son of the informant) was taken out from the house by one of the opposite parties namely Bablu. Following morning the two dead bodies 2 were found inside the well. One of them was identified as the son of the informant. It has been found by the learned trial court that PW-9 admitted during his deposition that he was informed by one Madan Mohan Seth @ Barkun. Aforesaid Madan Mohan Seth has been produced on behalf of the defence as DW-4. On consideration of the evidence brought on record, the learned trial court has found as under in paragraph nos. 21, 22 and 23. Paragraph-21: “on the other hand, on behalf of defence, it has been pleaded that the death of deceased was mere on accidental because all the gamblers started fleeing, having come to know about the arrival of police at gambling den. Thus, version has been fully supported by defence witnesses admittedly who were present there DW.2 and D.W.3 have admitted that they were also indulged in gambling and in course of gambling knowing about the police raid gamblers started fleeing with the result deceased fell down in the well situated near by the door of gambling den. In this case doctor has not been examined, though postmortem reports have been proved. Inquest report is also on the record. From the post-mortem report of Mukesh it is clear that blood stained from oozing out from nostril along with swelling over left cheek leading to the temporal area 2” x 2” and two abrasions were also found on left knee and Rt leg respectively. On dissection also lungs were found congested and on cutting lungs frothy blood came out. Water and blood was found in chest cavity. Heart and stomach were also found full with water and blood. In the opinion of doctor death was due to asphyxia as a result of drowing. Post mortem report of Pradeep Kumar also shows the death due as phyxia as a result of drowing. From the post mortem report, it is clear that only some simple injuries have been found on the body of deceased but the some were not sufficient to cause death moreover such injury can occur while falling in the well. Thus from these reports also, it is clear that death of deceased were not with the result of any injuries, allegedly caused by accused.” 3 Paragraph-22 “This case was lodged on 15.11.02 and the occurrence took place on 10-11-02. From the perusal of written report, it appears that delay in reporting the case has not been explained. From the perusal of evidence of DW.1 as well as Ext. C it is clear that almost at the same fact, by Dinesh Kumar(son of informant) an information had been given to the police about the occurrence, on which basis U.D.Case No. 12/02 was registered and during investigation of that case also statement of informant and others were recorded and at that time they had claimed the death as accidental. Thus, it appears that certainly after though, reason well known to informant this case was brought.” Paragraph-23 “It appears that this case was investigated by the police but after investigation also the final form was submitted, finding this case was mistake of fact but the learned A.C.J.M. took the cognizance on the basis of statements of witnesses recorded u/s 164 Cr.P.C. Admittedly, these witnesses were not produced by the I.O. before the court rather they got there statements recorded in private capacity which are meaning less in the eye of law. Thus, on the above circumstances, I again find that the death of deceased was accidental, but not homicidal.” Learned counsel for the petitioner admits that the case put up by the prosecution is/was based on circumstantial evidence. It is the contention of the petitioner that the evidence on record implicate the opposite parties and the judgment and order suffers from serious infirmities. When a criminal case is based entirely on circumstantial evidence, the chain of circumstance should be completed in all respects and must point the guilt of the accused. Learned Additional P.P. on the other hand, appearing on behalf of the state, states that the judgment and order of acquittal be not interfered as the same is based on correct appraisal of the 4 evidence(s) on record. It has also been pointed out that the government appeal preferred against the impugned judgment and order of acquittal being Government Appeal No. 50/08 has already been considered by a Division Bench of this Court and rejected vide order dated 9th January, 2009. On a consideration of the submissions this court finds no patent illegality and/or infirmity in the approach of the court. There is no merit in this application. It is accordingly dismissed. Sujit ( Kishore K. Mandal, J.)