IN THE HIGH COURT OF JUDICATURE AT PATNA G. APP. (DB) No.38 of 2010 THE STATE OF BIHAR Versus PINTOO YADAV & ORS ----------- For the Appellant : Shri Yogendra Pd. Sinha, AAG V For the Respondents : Shri Krishna Pd. Singh, Sr. Advocate ----------- 5/ 13.12.2010 We have heard learned counsel for the parties on admission of the present Government Appeal which has been preferred by the State of Bihar for bringing into question an order of acquittal passed against the fourteen respondents who were put on trial with convicted accused Anil Yadav in Sessions Trials No. 274 of 2004 and 276 of 2005 by framing charges under different heads including sections 302, 302/149 and 323/149 of the Indian Penal Code and section 27 of the Arms Act. The order of acquittal was passed by the judgment delivered on 19th April, 2010 by the Presiding Officer of Fast Track Court no. 3, Saharsa as regards the fourteen respondents. By the same judgment, the solitary accused Anil Yadav was convicted and appears sentenced by the order of sentence dated 20.4.2010. We are not concerned with that part of the judgment relating to the conviction of Anil Yadav. The prosecution case, in nutshell, was that all the 2 accused persons, armed variously and as dangerously as with weapons, like, gun, khanti, came over the piece of land and started digging out a hole for fixing a peg. The act was resisted and objected by the deceased Praveen Kumar Yadav, which resulted in abuses being hurled at the deceased. Two respondents, namely, Bindeshwari Yadav and Upendra Yadav are alleged to have ordered to kill the deceased, upon which, convicted accused Anil Yadav is alleged to have fired a shot hitting Praveen Kumar in his neck. He fell down and started bleeding from his neck and he died there. As may appear from the very narration of the prosecution, the dispute was for the piece of land and the disputed possession over it of the rival parties. A case was registered under various sections of the Indian Penal Code including section 302 and section 27 of the Arms Act vide Saur Bazar P.S. Case No. 64 of 004 and, it appears that charge sheets were laid before the court of original jurisdiction in instalments, as a result of which, two sessions trials culminated out of two committal orders to the court of Sessions as appears diligently put down by the learned trial judge in paragraph 2 of the judgment. A total number of nine witnesses were examined by the 3 prosecution and the defence, which was of false implication on the part of all the accused persons, produced some documents, which have been marked Exts. A, A/1 and B series. The defence of respondent Upendra Yadav was that he was imparting tuition in a school where he was posted and he had signed the attendance register which has been marked as Ext. H. He pleaded his absence from the place of occurrence. While delivering the impugned judgment, the learned trial judge, in fact, disbelieved the basic prosecution case that accused persons had assembled at the piece of land so as to fixing a peg. In fact, the court below was not accepting the prosecution story on its very genesis by referring to the evidence of Investigating Officer S.I. A.K. Kuzoor (P.W.9), who had deposed that he did not find any sign of digging up the earth and fixing peg at the place of occurrence. The court below was further relying upon the evidence of P.W. 9, the Investigating Officer, to disbelieve the participation of the respondents who were said to have brick batted after Anil Yadav had fired and killed Praveen Yadav. We were taken through the discussion of the witnesses made by the learned trial judge in the impugned judgment and we find that the court below was perfectly justified in 4 disbelieving the prosecution case as regards its genesis. It is true that some of the witnesses or, most of them, might have stated before the court that the accused persons had assembled at the place of occurrence and were digging up the earth to fix a peg but, the objective finding of the Investigating Officer (PW 9) was pointing out that he did not find the earth dug up nor did he find any evidence of fixing of the peg. So far as the participation of the respondents was concerned, the learned trial judge appears recording a correct finding by virtue of the fact that in spite of the witnesses alleging in their evidence that the respondents had brick batted, the Investigating officer did not find even a single piece of stone or a piece of brick at the place of occurrence. The I.O. was not finding any marks of blood at the place of occurrence and the prosecution was putting up an explanation that blood could not fall on the ground because as soon as the deceased had fallen on the ground, a towel had been put around his neck. However, the inquest report and the evidence of witnesses, who witnessed the inquest being held on the dead body, all pointed out that there was no towel found around the neck of the deceased, leaving the prosecution story yet to be doubted as to how blood could not be found at the place of occurrence. 5 The court below, to us, appears going by the principle falsus in uno falsus in omnibus and thereby separating the grain from the chaff. He has read the evidence to read the individual participation of the accused by rejecting the story of collective participation and the prosecution’s claim of forming of an unlawful assembly by the accused persons, which was prosecuting a common object and was going over to record a finding that it could be a case of individual act, which fact could be found proved by the evidence adduced on record. We find the approach of the court below reasonable, the view possible and the marshalling of evidence acceptable. Accordingly, we do not find any element of perversity in the impugned judgment as regards the same ending in acquittal of the respondents. The appeal appears of no merit. It is dismissed. Anil/ (Mridula Mishra, J.) ( Dharnidhar Jha, J.)