IN THE HIGH COURT OF JUDICATURE AT PATNA G. APP. (DB) No.17 of 2010 THE STATE OF BIHAR …………. APPELLANT. Versus 1. DAMODAR THAKUR, SON OF LATE RAMANAND THAKUR 2. SHILA DEVI, WIFE OF DAMODAR THAKUR 3. ABHAI THAKUR, SON OF DAMODAR THAKUR 4. PREM PRAKASH THAKUR, SON OF DAMODAR THAKUR ALL RESIDENTS OF VILLAGE – GIDHA, POLICE STATION – CHANPATIA, DISTRICT – WEST CHAMPARAN (BETTIAH) 5. RAM NATH THAKUR @ RAM NATH RAI, SON OF LATE GULI RAI, RESIDENT OF VILLAGE – MISRAULI, POLICE STATION – CHANPATIA, DISTRICT – WEST CHAMPARAN (BETTIAH). ………….. RESPONDENTS. FOR THE APPELLANT : - SRI PRASOON SINHA, GA3 SRI PRABHAT KUMAR, AC TO GA3 FOR THE RESPONDENTS : - SRI AJAY KUMAR THAKUR, ADV SRI MD. IMTEYAZ AHMAD, ADV SRI AMIR ALAM, ADV. ----------- 04/ 26.08.2010 Counsel for the State and counsel appearing for respondents are present. The government appeal arises out of judgment and order of acquittal dated 04.01.2010 passed by Additional Sessions Judge, F.T.C. V, Bettiah, West Champaran in Sessions Trial No. 596 of 2002, whereby all accused, who are respondents 1 to 5 have been acquitted of the charges framed against them. Sessions Trial No. 596 of 2002 arises out of Chanpatia P.S. Case No. 208 of 2002, which was instituted on the basis of the fard-beyan of informant Urmila Devi (P.W.10) for offence under Sections 302, 307 read with section 34 of the IPC and 27 of the Arms 2 Act. The case of prosecution was that on 24.8.2002 at 10.30 a.m. a panchayati was organized to settle the dispute relating to the partition of landed property in between the parties. Damodar Thakur (respondent no. 1), Ram Nath Thakur (respondent no. 5), Subhash Dubey, Ashok Rai, Manoj Thakur, Abhai Thakur (respondent no.3), Ram Prakash Thakur (respondent no.4) and Shila Devi (respondent no. 2) were members of one party and Rabindra Thakur (deceased), Chandi Thakur and Urmila Devi (informant) were members of other party. Panchayati was held at the house of Damodar Thakur, but during panchayati Damodar Thakur and his party forcibly tried to compel Rabindra Thakur (deceased) to accept the decision taken in the panchayati. Since it was not acceptable to Rabindra Thakur as such the accused persons became annoyed and accused Abhai Thakur and Shila Devi rushed inside their house and brought double barrel gun and country made guns. The fire arm was handed over to Prem Prakash Thakur and Ashok Rai. Manoj Rai started firing from his gun. Rabindra Thakur tried to flee away 3 from the place of occurrence to save his life but he received gun shot injury fired by Abhai Thakur and he died at the spot. The two ladies Antima Kumari and Lalpari Devi also sustained injuries and they were taken to M.J.K. Hospital for treatment. On submission of the charge sheet and commitment of the case to the court of Sessions, the trial was conducted by the Additional Sessions Judge, F.T.C.V, Bettiah, West Champaran vide Sessions Trial No. 596 of 2002. The prosecution examined 19 witnesses, out of them 10 turned hostile and did not support the case of prosecution. Evidence of remaining 9 witnesses has been discussed in the impugned judgment by the trial Judge in detail. The reason has also been assigned for not placing reliance on their evidence for the purposes of conviction of the accused-respondents. The reasons have been sum up in the last but one paragraph of the judgment, which is as follows:- “Thus in view of the above discussion I find that the genesis of occurrence and manner of occurrence as suggested by the prosecution has not been proved by the 4 prosecution. There is cogent and overwhelming evidence on the record that the gun injuries in the manner received by the deceased are not possible by one gun shot. That the evidence on record further indicates that the injuries received by Antima Kumari and Lal Pari Devi on her sole in standing position and on the cheek of Lal Pari Devi are not possible in the manner as stated by the prosecution. The place of occurrence has also not been proved by the prosecution. According to postmortem report there is no case of one gun shot injury in the manner as stated by the prosecution. There is no consistent evidence with regard to the manner of occurrence. The prosecution has suppressed the injuries received by the accused persons knowingly and intentionally. The prosecution has suppressed the original fardbeyan. The genesis of occurrence has not been proved. 5 The prosecution evidence indicates that the alleged partition is between the both parties have been earlier took place thought. Panchayati vide photo copy of panchayati marked „X‟ for identification. The theory of panchayati has not been proved by the prosecution particularly by the informant. Because already partition of the property had took place where after the informant had herself sold the land in favour of the wife of accused Asheshar Sah (P.W. 7) through Ext. B.” We have also noticed that none of the panches, who are said to have participated in the panchayati on the date and place, which was held, has been examined. The prosecution case is that only one fire was made by Abhai Thakur but the post mortem report indicates that three gun shots injuries were received by the deceased, which has not been explained by the prosecution in the deposition of the witnesses. It is a fact that the case was instituted for offence under Sections 302, 307/34 of the IPC and 27 of the Arms Act. The allegations are 6 serious. Unless the charges are proved by the prosecution beyond all reasonable doubt, there can be no any judgment of conviction passed by the trial court. We do not find any infirmity in the judgment. The appeal is dismissed. DKS/ (Mridula Mishra, J.) (Dharnidhar Jha, J.)