IN THE HIGH COURT OF JUDICATURE AT PATNA G. APP. (DB) No.10 of 2010 THE STATE OF BIHAR Versus ANANDI YADAV & ANR With CR. REV. No.511 of 2009 MADAN @ SADANAND YADAV Versus STATE OF BIHAR & ORS ----------- 5/ 20.5.2010 We have heard learned A.C. to G.P. 17 in support of the present Government Appeal, Shri Kanhaiya Prasad Singh, learned senior counsel in support of Criminal Revision which has been filed by the informant of the case and also Shri Ranjit Kumar Singh, learned counsel appearing on behalf of the respondents. The case related to the murder of one Chunchun Yadav, the brother of the informant. It is stated by the informant (PW 3) that the informant and the deceased alighted from a Tata Maxi vehicle and started for their home. The accused persons are alleged to have come and, all of a sudden, attacked the two brothers. There is specific allegation against Sudhakar Yadav, Sunil Yadav, Ramdeo Yadav, Anarsi Yadav and Ajay Yadav, all respondents, that they individually fired one shot each at different parts of the body of the deceased, seeing which the informant started running away from the scene of the occurrence. The informant was also fired at by the accused persons but, he could not be hit by any of the shots. When he came back, he found that his brother was dead. During the course of trial, P.W. 1 Naresh Yadav, P.W. 2 Dinesh Yadav alias Mantu Yadav, P.W. 3 Madan alias Sadanand Yadav (informant), P.W. 4 Suchit Ram alias Sujit Ram came to 2 support the allegations of individual shots being fired by the above noted respondents. The learned trial judge found that the witnesses, specially the informant had some interest in the litigation for two reasons. It was found that the informant was the full brother of the deceased and further that there had been some litigation prior to the present one and one such litigation had ended in an order of conviction in respect of the informant and others. Some documents in that behalf appear also produced before the court below, as appears discussed in paragraph 4 of the judgment. The learned trial judge did not reject the evidence of the witnesses on account of their interestedness, rather, he appreciated the evidence on the yardstick of probabilities and came to the conclusion that from that angle also, the witnesses could not be said to be the eye witnesses as there was grave doubt in their claim of being present on or around the place of occurrence. While rejecting the claim of the witnesses to be the eye witnesses, the learned trial judge assigned the reasons that the informant had not named them as such, and, further that when the informant came back after having run away earlier he found that the witnesses had come. The informant did not say that when the shooting was going on, any of the witnesses were around the place of occurrence. The learned trial judge read and considered the evidence of each and every witness and on that strength, has recorded a finding that they did not appear eye witnesses to the 3 occurrence and it was doubtful that they could be present at the place of occurrence. The most important aspect of the facts on which the acquittal was ordered, was that there were only four gun shot injuries on the dead body whereas the assailants were five and six shots were allegedly fired by them. However, the doctor found two injuries, one on chest and the other on his head, which were caused by hard and blunt substance and there was not even a whisper about the author of those injuries either in the FIR or in the evidence given by the informant, P.W. 3. It was held by the learned trial judge that finding this anomaly appearing in the postmortem report, an attempt was made by the prosecution at the very initial stage to get the statements of witnesses recorded under section 164 of the Cr.P.C. in which they stated that assaults were given also by hard and blunt substance on the head and chest of the deceased but, again the same witnesses changed their statements earlier recorded under section 164 of the Code of Criminal Procedure through another statement under the same section and stuck up to the initial prosecution story as contained in the FIR. Besides the above reasons, the trial judge found that it was a busy thorough fare, many vehicles were coming and going through the place of occurrence and there could be many independent persons who could be available at the time of occurrence but, none came to support the incident. After having heard the learned counsel for the parties 4 and after having perused the judgment impugned herein, we find that the view which was taken by the learned trial judge was also a view which could be possible on the evidence available on record in S.T. No. 698 of 1998 arising out of Banka P.S. Case no. 288 of 1994 and as such, we do not find the judgment suffering from the perversity. In that light, we do not find any merit in the Government Appeal as well as in the Criminal Revision petition and the two are dismissed. Anil/ ( Dharnidhar Jha, J.) (Akhilesh Chandra, J.)