CRIMINAL APPEAL No.2 OF 1993 ------ Against the Judgment and Order of acquittal dated 18.7.1992 passed by Shri Suresh Chandra Shrivastava, Judicial Magistrate 1st Class, Bhabhua, Rohtas in Complaint Case No.5/86,Trial No.259/92. ------ Kuber Singh son of Ramjagi Singh resident of village Rampur, PS Bhabhua, District- Rohtas (at present District Bhabhua) .... Complainant.... Appellant VERSUS 1. Shyam Bihari Sah son of Tulsi Teli 2. Bhim Dusadh son of Sanehi Dusadh 3. Laloo Bind son of Nalish Bind 4. Daroga Yadav son of Ganesh Yadav 5. Umrao Yadav son of Daroga Yadav 6. Awadah Bind son of Fauzdar Bind 7. Suryanath Dusadh son of Sitaram Dusadh, All residents of village-Rampur,P.S. Bhabhua, District-Rohtas (At present District-Bhabhua) 8. Chandradeo Bind son of Butan Bind, resident of village-Baruna 9. Ramkrit Bind son of name not known resident of village Marchaon, O.P. No.8 and 9 under P.S. Bhabhua, District-Rohtas (at present District-Bhabhua) ............Opposite Parties --------- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH Shiva Kirti Singh,J. Nobody appears on behalf of the appellant or on behalf of any of the accused- opposite parties 2. This appeal has been preferred by the complainant after obtaining special leave to appeal against the judgment and order dated 18.7.1992 passed by Judicial Magistrate 1st class, Bhabhua, Rohtas whereby all the nine accused persons in complaint case no.5/86, trial no.259/92 have been acquitted of charges under section 147, 148, 323 and 380 of the IPC. 2 3. The previous order dated 10.12.1996 required the appellant to take steps for fresh notice upon opposite party no.1 and 4 to 9. That peremptory order was not complied with and as such, the appeal has stood dismissed against those respondents and is required to be considered only in respect of opposite party no.2 and 3. 4. On going through the judgment of acquittal under appeal, it is found that allegation of assault with the barrel of the gun is against opposite party no.1, Shyam Bihari and although others were variously armed, there is no allegation that they caused injury to anyone. The complaint petition further shows that till filing of the complaint, the complainant/ appellant had not cared to get himself treated or examined by any doctor. Subsequently, he appears to have obtained injury report from PW 6. The injury report is dated 17.1.1986, the date on which Annexure-1, the complaint petition, appears to have been filed in court alleging that a serious occurrence of dacoity and attempt to murder had taken place at Darwaza of the complainant on 16.1.1986 at 10 pm. 5. On careful perusal of the complaint petition as well as complainant’s case in court, it appears that parties are inimical to each other from before and there is no explanation as to why the complainant did not approach the police for investigating an alleged offence under section 395, 307 and other sections of the IPC and under Arms Act, as mentioned in the petition of complaint. 6. The witnesses, who have claimed to be eye witnesses, are close relations and family members of the complainant as discussed by the trial 3 court. The trial court has considered such evidence of interested witnesses carefully. It has also noticed that the doctor has failed to mention in the injury report as to where the injuries, namely, (i) laceration 1”x 1” x ¼” and (2) one abrasion of lower eyelids 2” x 1” are situated. No doubt, the abrasion is on the lower eyelids but it does not specify whether on right eye or left eye. 7. Considering that the main accused who allegedly caused injuries by barrel of the gun and not by firing the gun, opposite party no.1, Shyam Bihar Sah has already got the benefit of acquittal on account of failure of the appellant to comply with peremptory order dated 10.12.1996 and similar benefit of acquittal has accrued to opposite party no.4 to 9 also, this Court does not find any merit in the appeal which is confined only against acquittal of opposite parties no.2 and 3, namely, Bhim Dusadh and Laloo Bind. On merits also, on careful perusal of the materials on record this Court is not persuaded to interfere with the judgment and order of acquittal. 8. The appeal is dismissed, particularly in view of the fact that counsel for the appellant has chosen not to appear and press this appeal against acquittal of opposite party no.2 and 3. (Shiva Kirti Singh,J.) Patna High Court The 15th April, 2009. NAFR/ S.Kumar