IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.623 of 2011 Anup Narayan Singh, S/o-Late Shuba Lal Singh, R/o-Vill.-Sonten Bigha, P.S.- Tharthari, District-Nalanda. –Appellant. VERSUS 1. The State of Bihar. 2. Dewan Gope, S/o-Late Hazoor Gope, 3. Brindi Gope, S/o-Naresh Gope, 4. Randhir Kumar, S/o-Braj Ballabh Singh, 5. Binod Singh, S/o-Late Ram Chandra Singh, 6. Braj Ballabh Singh, S/o-Late Ram Chandra Singh, 7. Lallu Gope, S/o-Dipu Gope, 8. Chandradeep Gope, S/o-Ram Lal Gope, All resident of Village-Santan Bigha, P.S.-Tharthari, District-Nalanda. –Opposite Parties. ----------- 05 09.08.2011 This is an appeal against acquittal by the father of the deceased. It was originally filed as a revision against acquittal but was permitted to be converted into an appeal under Section- 372 of the Criminal Procedure Code. We have heard the counsel for the appellant at length and we are of the view that the order of the trial Court acquitting the accused persons, who are opposite parties in the present case, needs no interference. Learned counsel for the appellant submitted that the trial Court has proceeded mechanically in not accepting the evidence and the case of the prosecution. In our opinion, this is not correct. The trial Court, having examined the evidence in detail, has rightly held that the prosecution case does not stand established much less beyond reasonable doubt and it has many holes in it. The prosecution case appears to be based on the fardbeyan of one Bhrig Narayan Singh, P.W.8 who happens to be 2 uncle of the deceased. The fardbeyan was recorded by the police on 26.09.2001 at about 10:30 am. It alleges that at about 9:30 pm on 25.09.2001 the accused persons entered into the house of the deceased Om Prakash Singh, who was sleeping on the terrace, they mercilessly beat hi. When the deceased shouted for help he got up and wanted to go his rescue but was threatened by the accused persons. He saw the whole occurrence from his house through a hole in the door with the help of torch light. He further alleges that the accused persons then dragged the deceased through a bye lane (Gali) and brought him at the ‘Darwaja’ of one of the accused where three of them fired from their country made guns at point blank range, whereas others assaulted with Khanti and Bhala then they dragged the body away. Upon registration of the F.I.R. and after investigation chargesheet having been submitted and the case having been committed to the Court of Sessions the trial was taken up. In course of trial, the informant who be the uncle of the deceased was examined as P.W.8. The father of the deceased who is the present appellant was examined as P.W.5, Uma Shankar Prasad was examined as P.W.6 and Jai Prakash Narayan Singh was examined as P.W.7. These three P.Ws., that is, P.Ws.5,7&8 are brothers and profess to be eye witness. P.W.10 Awadhesh Singh is the nephew of P.W.5, the father of the deceased who is also said to be eye witness. The trial Court has discussed the evidence of all these eye witnesses and found them unreliable. So 3 far as the father of the deceased is concerned, though he claims to be sleeping in the same house with the deceased his name is not mentioned in the F.I.R. at all which is lodged by the uncle of the deceased who stays in the neighbouring house, rather when the I.O., P.W.12 is examined he admits that it was clearly disclosed that the father of the deceased did not stay in the village but was at Patna. All the alleged eye witnesses from different part of their independent houses allegedly saw the incidence of scuffling at the terrace of the house of the deceased and then three persons shooting the deceased at point blank range. The trial Court has rightly held that it was not possible for them to be eye witness. The doctor, who conducted the postmortem examination, was also examined as P.W.11. He found only one bullet injury as against case of three shots fired at point blank range at different parts of the body. He found other lacerated injury. The I.O. in his deposition has admitted that neither at the place where the deceased is said to have been fatally assaulted and shot nor the place where his body was dragged and dumped outside the village did he find any mark of scuffle or blood or any gun shot marks. There was no independent witness of the occurrence. It was also established that though the incident took place at about 9:30 pm on 25.09.2001 no one went to the police station to inform rather when the police came to know of this and came to the village after more than 12 hours on 26.09.2001 the F.I.R. was recorded. But what is most curious is that the F.I.R. was forwarded to the Court and 4 received by it only on 28.09.2001 for which there is no plausible explanation. It is also established that all the doors and windows of the house of the deceased had been removed much earlier by the police in execution of the process under Sections-82&83 of the Criminal Procedure Code as against the deceased who was a veteran criminal wanted in many cases was an absconder in many cases. Police did not find any bed, clothes, or sleeping linen or any cooking utensils or ‘Chulaha’ (cooking stove) in the house of the deceased to show that it was inhabitant. Prosecution had already admitted that there were cases against the accused persons some of whom were their own nephew, being the sons of their predeceased brother. They were either not identified or wrongly identified in the Court by their own uncles. In view of the aforesaid, in our opinion, the trial Court did not err either in fact or in law to acquit the accused persons as neither the place of occurrence could be conclusively established nor the manner of occurrence nor the injuries and nor the testimony of the eye witnesses were reliable. We, accordingly, do not grant leave to appeal and dismiss the appeal. Ashwani Kumar Singh, J.- I agree. Trivedi/ (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.)