GOVT. APPEAL (SJ) No.70 OF 1990 ---------- Against the judgment of acquittal dated 25.06.1990 passed by Sri R.N. Prasad, the then Judicial Magistrate, Ist Class, Madhepura in Madhepura P.S. Case No. 230 of 1984, G.R. No. 1173 of 1984. ---------- The State of Bihar...............................................................Appellant. Versus 1. Hari Nandan Yadav Son of Kalika Dutta Yadav. 2. Tilak Yadav, Son of Bhutai Yadav. 3. Arunandan Yadav, son of Raghu Nandan Yadav. All residents of Mohalla- Madhpeura, Ward No. 5, P.S. Madhepura, District-Madhepura.......................................................Respondents. ---------- For the Appellant : Mr. Jharkhandi Upadhaya, A.P.P. For the Respndents : Mr. Vivekanand Singh, Advocate. ---------- P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha,J This appeal by the State Government under Sections 378(1)and (3) of the Code of Criminal Procedure has been preferred by the State Government against the judgment of acquittal passed by Sri Ram Nath Prasad, the then Judicial Magistrate, Ist Class, Madhepura, whereby he has acquitted the accused of the charges under Sections 144, 447, 427 and 506 I.P.C. Briefly stated, the prosecution case as culled out from the written information lodged by one Ram Chandra Mahto at about 3.00 P.M. on 7.12.1984 is that while he at around noon was busy working in the vegetable fields taken on batai with a Kudali, all the five named accused variously armed with pistols, garasa and bows and arrows accompanied by 20-25 unknown others variously armed with bows and arrows, lathi and bhala arrived all of a sudden and snatching his Kudali pushed him and as he raised protest accused - 2 - Hari Nandan Yadav gave orders to tie him up and uproot and throw away all the vegetables that had been grown. It is alleged that even as the unknown persons started uprooting the grown vegetables, the named accused pointing their pistols and bows and arrows at him forbade him from raising any alarm and accused Hari Nandan touching his pistol on his chest forcibly took his left thumb impression on two blank sheets of paper. Thereafter accused Dhirendra Kumar Yadav took away Rs. 300/- kept in a Jhola and one blanket worth Rs. 100/- from within the hut and also uprooted it. It is alleged that the uprooting of vegetables spread over an area of two bighas of land had caused a loss of about Rs. 10,000/-. It is further alleged that attracted by the commotion landlord Ram Bahadur Yadav came running whereupon on the orders of Arunandan Yadav ordered to kill him and Tilak Yadav shot two-three arrows at him from the bow in his hands which fortunately struck him on the coat and he managed to flee and save his life. The occurrence is said to have been seen by several persons who rushed to the spot including Bishundeo Yadav, Laxmi Yadav, Upendra Yadav and Ram Bahadur Yadav. The cause of the occurrence is said to be the efforts of the accused to vex and harass the landlord in such a manner that he would be compelled to sell his lands as earlier hitherto too threats were extended on several occasions. On the basis of the said written report the police case was registered under Sections 144, 447, 427, 506 and 379 I.P.C. against the five named and 20-25 unknown persons but after investigation a charge sheet was submitted under Sections 144, 447, 427 and 506 - 3 - I.P.C. only against F.I.R. named accused Hari Nandan Yadav, Tilak Yadav and Arunandan Yadav. At the trial the prosecution examined only three witnesses in support of its case but curiously no documentary evidence was sought to be adduced. As a matter of fact a crucial document like the written report and the formal F.I.R. has not been exhibited and the Investigating Officer has also not been examined and curiously no reason has been assigned therefore. P.W.1, Laxmi Mandal, is one of the witnesses named in the written report who had arrived at the scene of occurrence and has sought to support the prosecution case in material particulars in course of his examination-in-chief. However, he appears to be tutored witness or else how would he know what amount of money was kept in the Jhola or what was the cost of the blanket or even what was the exact extent of damage caused by the uprooting of the vegetables. He also appears to be an interested witness since he admits being an accused in the counter case filed by Tilak Yadav and thereby had good reasons to depose against the accused. P.W.2 is Ramautar Yadav who is neither the informant nor the landlord nor one of the named witnesses in the written report submitted by the informant. Like P.W.1 he too supports the prosecution case in material particulars in course of his examination- in-chief. In his cross-examination he states that he has two other bothers Rampukar and Ram Bahadur and two cousins Siya Ram and Jagdish. He also states that the P.O. lands in the recent survey - 4 - khatiyan were recorded in the name of his two cousins, his two brothers and himself. However, he is not in a position to give boundary of the P.O. lands. He too appears to be a tutored and interested witness or else like P.W.1 how he could have stated what amount of money had been taken out of the Jhola kept in the hut by Dhirendra Kumar Yadav and what was the value of the blanket taken away. He also admits that he is an accused in counter case filed by Tilak Yadav. P.W.3 is the informant Ram Chandra Mahto who naturally has supported the story propounded in the written report submitted by him. He admits that he got the written report authored by Siya Ram Yadav, the cousin of the landlord Ram Bahadur and P.W.2. In course of his cross-examination he states that he cultivates Parwal crops only on the lands taken in batai but in the written report submitted he has also mentioned about growing parwal, karaila, cucumber, watermelon on the said lands. To a query by the defence he states that apart from him 10-12 labourers of his village whose names he did not remember were also available in the field. This fact is not indicated in the written report submitted by him. He admitted that he had no papers in respect of the bataidari. As stated above neither the written report nor the formal F.I.R. or any other document has been adduced in evidence and exhibited by the prosecution. It is also clear that apart from the informant himself only two other witnesses who apparently appear to be tutored and interested witnesses have been examined. No reason - 5 - whatsoever has been furnished by the prosecution for not adducing documentary evidence or examining landlord Ram Bahadur Yadav and other two witnesses who are named in the written report or the 8- 10 labourers who were said to be present. Even the I.O. of the case has not been examined and independent witnesses also remained unexamined. Not brining on record the written report of the informant, though an important document being the earliest version of the prosecution case, it is not a substantive piece of evidence and can be used only for the purposes of corroboration and contradictions. The same not having been brought on record prejudices the defence case. Similarly the non-examination of the I.O. in this case has resulted in failure of the prosecution case since the defence has been deprived of proving some material contradictions in the depositions of the witnesses. Even the objective findings/observations of the Investigating Officer in respect of the place of the occurrence has not come on record and the defence has been deprived of knowing as to what was the extent of destruction or damages of the vegetables and the hut in question resulted, or if there had at all been any destruction or damage. In the aforesaid circumstances in my opinion the prosecution can not be said to have proved their case to be true beyond all reasonable doubts. Another factor which is required to be taken into consideration is as to why the State Government all of a sudden - 6 - became so vigilant in preferring this appeal against acquittal. In the facts and circumstance of the case, it is difficult to understand why the State Government was so eager to file an appeal against the judgment of acquittal for such trivial matters and that too when there was no exceptional circumstance. Admittedly, the right of an appeal is an extraordinary remedy but appeals specially by the Government against the judgment of acquittal should be made judiciously and only in cases where the judgment is so clearly wrong that its maintenance would amount to serious miscarriage of justice or when a principal is involved or where the question is one of great importance. That apart the burden is on the Government to show that the acquittal is wrong and strong and urgent grounds must be made out to justify interference. I have perused the impugned judgment of acquittal which does not reveal the existence of any of the conditions discussed in the preceding paragraphs dealing with the right of filing of an appeal by the State Government. The reasoning assigned by the learned Trial Judge are cogent enough and does not call for any interference. Due regard being had to the facts and circumstances of the case, the appeal preferred by the State Government is hereby dismissed being without any merit and for the reasons discussed above. (Abhijit Sinha,J) Patna High Court, Patna. Dated: the 20th August, 2009. U.K./A.F.R.