GOVERNMENT APPEAL (DB) No.44 OF 1988 With Criminal Revision No. 700 of 1988 ________ Against the judgment passed by Sri K.B. Verma, 9th Additional Sessions Judge, Arrah dated 09.05.1988 in Session Trial No. 334/1986. ________ In Govt. Appeal (DB) 44 of 1988 The State of Bihar --------------Appellant Versus 1. Brinda Yadav, son of Naresh Yadav 2. Vinod Yadav, son of Dhurbal Yadav 3. Ram Pravesh Yadav, son of Late Hardeo Yadav 4. Jai Prakash Yadav, son of Naresh Yadav 5. Shankar Yadav, son of Keshwar Yadav, All are residents of village and P.O. Pawna, P.S. – Sandesh, District – Bhojpur. -----------Respondents In Cr. Rev. No. 700 or 1988 SHIVJEE SINGH, Son of Sri Ramashish Singh, Resident of Village - Pawana, P.S. Sandesh, District - Bhojpur. -----------Petitioner Versus. 1. The State of Bihar, 2. Brinda Yadav, son of Naresh Yadav 3. Vinod Yadav, son of Dhurbal Yadav 4. Ram Pravesh Yadav, son of Late Hardeo Yadav 5. Jai Prakash Yadav, son of Naresh Yadav 6. Shankar Yadav, son of Keshwar Yadav, All are residents of village and P.O. Pawna, P.S. – Sandesh, District – Bhojpur. ---------Opp.Parties ________ In Govt. Appeal no. 44/1988 For the Appellant : Sushri Shashi Bala Verma,APP For the Respondents : Sushri Nutan Sahay (amicus-curiae) - 2 - P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA --------- Dharnidhar Jha & Akhilesh Chandra, J.J. Criminal Revision No. 700 of 1988 Shri Krishna Prasad Singh, Learned counsel for the petitioner seeks permission to withdraw this Criminal Revision Petition No. 700 of 1988. Criminal Revision Petition 700 of 1988 is hereby dismissed as withdrawn. Government Appeal (DB) No.44 of 1988 The Government Appeal is against the judgment of acquittal passed by 9th Additional Sessions Judge, Arrah on 9th of May, 1988 in Sessions Trial No. 334/1986 by which the respondents nos. 2 to 6 were acquitted of the charges under Section 302/149 etc. of the Indian Penal Code. We have heard Sushri Shashi Bala Verma, counsel for the State and Smt. Nutan Sahay, being appointed as amicus curiae on behalf of respondents nos. 2 to 6. Smt. Verma, learned counsel for the State, has supported the judgment by submitting to us that the witnesses have supported the commission of the offence and the defence which was taken by the respondents does not appear probabilised proper out of the material available on record. It was further contended - 3 - that the view taken by the learned Trial Judge was completely erroneous. As against the above, Smt. Sahay, has pointed out to us that the judgment and the evidence adduced in the trial court may indicate that before the first information report was given none was coming forward to the Police to narrate as to how the occurrence had taken place and that was the reason that the Police had undertaken the investigation. Even in absence of any fardbeyan or the first information report the Police had prepared seizure memo and inquest report and after having these important aspects of investigation recorded the F.I.R. It was further contended that the informant was not an eye witness and he claimed learning about the occurrence from one Jai Kumar Singh, but the said Jai Kumar Singh was not examined and that created a big void in proof of the prosecution charges. The next contention was that the informant has stated in his evidence that he talked to many persons after the murder of Jangali Sao was committed, but curiously enough, he was silent on the names of the accused who had participated in the commission of the offence and who really had caused the death of Jangali Sao by shooting him. Smt. Sahay submitted that these were the reasons on account of which the judgment of acquittal was passed. - 4 - We perused the record and the judgment impugned herein and we find that no first information report was given to the police when it had arrived at the place of occurrence and no one was coming to narrate to it has to how Jangali Sao had been murdered. As a result of the above the Investigating officer held inquest upon the dead body of Jangali Sao and thereafter made seizure of certain relevant incriminating articles and prepared the seizure memo. This is too well known to be stated that holding an inquest or seizing some articles and preparing documents in that behalf are parts of investigation. Admittedly, no one was coming forward to lodge a report about the occurrence with the police. We could safely conclude that there could be many probabilities on account of which no one was coming forward to lodge a report. One, out of those probabilities, could be that no one had really seen or knew as to how the deceased Jangali Sao had been murdered and by whom. The other inference which could be drawn is that the prosecution party finding themselves in complete dearness, had gone into a huddle to chart out as to what story had to be put forth before the police through the report and as such they were not coming forward. Either of the above two inferences could be sufficient, in our considered view, to create serious doubt about the veracity of the prosecution evidence. We have not touched upon the issue of the document, first information - 5 - report, being admissible or not admissible because that may not make much of a difference. The second defect in the prosecution case was that the informant admitted in his evidence that he had told many persons about the occurrence but his evidence indicates that while narrating about the occurrence, he had not named any one either as the assailant of the deceased or persons who had participated in commission of the offence. This was one of the reasons which was considered by the learned Trial Judge making the evidence and the prosecution story very difficult to be accepted. The third reason which we also find is that the informant had learnt about the incident from one Jai Kumar Singh. But, the said Jai Kumar Singh has not been examined. As such there is a great void left in the prosecution evidence making it highly doubtful to rely upon the other evidence to up set the order of the acquittal. After having considered the evidence and contentions, we find that the view, which was taken by the learned Trial Judge, was also a probable view and as such the order of acquittal passed by the learned Trial Judge appears not an unreasonable view. We could not find any element of perversity afflicting the impugned judgment. As a result of the above discussions, we find the present Government Appeal meritless and the same is hereby dismissed. - 6 - The respondents no. 2 to 6, were directed to be admitted bail on furnishing bail bond of sum of Rs. 7000/- (Seven Thousand only) each with two sureties of the like amount each to the satisfaction of the Trial Court by this Court on 20.08.1988. They are discharged from the liabilities of their respective bail bonds. This government Appeals is hereby dismissed. Let first page and the last page of the order be made over to Smt. Sahay, who, in our opinion, is entitled to a fee which we order to be paid to her by the High Court Legal Services Committee. Patna High Court, The 30th March, 2010.. Rajeev/ (N.A.F.R.) (Dharnidhar Jha, J.) (Akhilesh Chandra, J.)