Govt. Appeal (SJ) No.11 OF 1996 Against the order and judgment of acquittal dated 06.09.1995 passed by Sri Dhananjay Prasad Singh, Ist Additional Sessions Judge, Samastipur in Sessions Trial No. 110/104 of 1986/89. The State Of Bihar ----------------------------------------------- (Appellant). Versus 1. Bishwanath Gupta, Son of Bilat Sah. 2. Mithilesh Gupta, Son of Laxmi Sah. 3. Baij Nath Gupta, Son of Bilat Sah. 4. Ram Sajjan Rai, Son of Satrangi Rai. All are residents of village – Kalyanpur, P.O. & P.S. – Kalyanpur, District – Samastipur. ------------------------------------- (Respondents). --------- For the Appellant (State) :- Sri Parmeshwar Mehta, A.P.P. For the Respondents :- Sri ----------- P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. This Government Appeal has been directed against the order and judgment of acquittal dated 06.09.1995 passed by Sri Dhananjay Prasad Singh, Ist Additional Sessions Judge, Samastipur in Tr. No. 110/104 of 1986/89 by which the respondents Bishwanath Gupta, Mithilesh Gupta, Baij Nath Gupta and Ram Sajjan Rai have been acquitted. 2. The prosecution case as alleged in the fardbeyan is that the informant Durgesh Charan Prasad Kumar @ Pandav Kumar while was going from his house then he was surrounded by Sundeshwar Rai, Devendra Thakur, Awadhesh Rai, Murari Rai, Laxmi Sah, Vishwanath Gupta, Madan Rai, Bhola Rai, Ramesh Rai, Ram Sajjan Rai, Mithilesh Gupta, Ram Dayal Rai, Baijnath Gupta along with 30-40 other persons and Sundeshwar Rai assaulted 2 him by Fersa blow on his head by which he got injured and others have also assaulted him and then the witnesses rushed to his rescue and then the police party came to his rescue then the accused persons tried to snatch the rifle of the police party. 3. On the fardbeyan of the informant the First Information Report was lodged and after investigation the charge-sheet was submitted under Section 307 of the Indian Penal Code and other allied sections of the Indian Penal Code including Sections 147, 148, 149, 323, 324, 353, 379 and 511 of the Indian Penal Code and subsequently the charge was framed against 12 accused persons facing the trial which includes the charges against these four respondents for offence under Sections 147, 307/149, 323 and 342 of the Indian Penal Code. 4. However, out of 12 accused persons facing the trial these four respondents were acquitted whereas the other eight accused persons facing trial were convicted. 5. However, this Government Appeal has been preferred by the State against the order of acquittal recorded by the lower court. Altogether 27 witnesses have been examined and after considering the evidence adduced by defence, the defence of these respondents being of alibi, the judgment of acquittal has been recorded. 6. Learned counsel for the appellants, however, drew the attention to para 16 of the judgment in which it has been mentioned that P.Ws. 4 and 7 have named the respondent Baidnath Gupta as the assailant of the informant and 3 P.Ws. 12 and 18 have stated that the respondents have assaulted his father with lathi and hence contended that on the same set of evidence other accused persons have been convicted whereas these respondents have been acquitted. 7. Hence, the question for consideration is whether the order of acquittal recorded against these respondents is sustainable. 8. However, the prosecution case as alleged in the fardbeyan by the informant is that at about 30-40 persons including these respondents came and assaulted. However, Vishwanath Gupta, Mithilesh Gupta and Ram Sajjan Rai though have been named in the First Information Report but the name of Baijnath Gupta does not find place in the First Information Report. 9. However, the charge-sheet has been submitted against other accused persons but Baijnath Gupta was not sent up for trial and he has been added as an accused under Section 319 of the Cr. P. C to face the trial. 10. However, in the First Information Report itself there is no specific allegation about the assault by Vishwanath Gupta, Ram Sajjan Rai and Mithilesh Gupta on the informant. The allegation regarding the assault is quite vague and omnibus and so far Baij Nath Gupta is concerned his name does not find place in the First Information Report and it has been submitted that he was remanded as an accused under Section 319 of the Cr. P. C. 11. However, P.Ws. 4 and 7 has named accused Baijnath Gupta alleged to have assaulted with lathi. However, the injury on the person of the informant has been found to be simple and superficial and there is no specific allegation against these respondents having assaulted on which part of the body and 4 further Baijnath Gupta having been named in the fardbeyan and at the later stage the allegation about the assault on the other respondents Bishwanath Gupta, Mithilesh Gupta and Ram Sajjan Rai are omnibus and further the fact that the learned lower court relied upon the evidence of D.W. 3 regarding his alibi of being at Patna and hence having regard to the entire facts and circumstances of the case since there is no specific evidence against these respondents about their participation or specific allegation against them of having assaulted whom and on which part of the body and further having regard to the fact that Baijnath Gupta was not named in the First Information Report and the evidence against him of having assaulted by lathi to the informant is shown and further the injury of the informant is simple in nature, hence, taking into consideration the entire facts and circumstances, I am of the firm opinion that prosecution has not been able to prove the charges leveled against the respondents and the learned trial court has rightly recorded the order of acquittal against these respondents and hence I do not find any merit in this Government Appeal and it is, accordingly, dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 20th June, 2011. NAFR/Kundan.