Honourable Mr. Justice Shyam Kishore Sharma
1. In view of the order dated 19.05.2011, this appeal has been referred before the Division Bench though, cause list of today shows that this appeal be listed along with G. App (DB) No. 14 of 1994. But it appears that noting on the cause list showing that this appeal be tagged for hearing is incorrect and other Government Appeals is not connected with the present Government Appeal so only G. App (DB) No. 26 of 1996 is being disposed of.
Shri Ashwini Kumar Sinha, the Learned Counsel is appearing on behalf of the State and nobody appears on behalf of the respondents. Government Appeal (DB) No. 26 of 1996, the State of Bihar has assailed the judgment dated 30th March of 1996, passed by the learned 2nd Additional Sessions Judge, Saharsa in connection with Sessions Trial No. 28 of 1995, whereby the accused persons/respondents Laxman Yadav, Ranbir Yadav, Luro Yadav, Naresh Yadav, Dinesh Prasad Yadav, Manoj Yadav, Jageshwar Yadav, Suresh Yadav, Sachendra Yadav, Gajjo Yadav @ Gajendra Yadav, Ramdhani Yadav, Pandav Yadav, Mithilesh Kumar Yadav and Tribeni Yadav have been acquitted under Sections 147, 148, 149, 302, 341, 323 of the Indian Penal Code and Section 27 of the Arms Act.
2. On 18.02.1993, at about 10.00 A.M., the informant was in his Baithka house, his younger brother Arjun Yadav was having bread in a plate there and the informant''s father was also present. In the meanwhile accused Ranbir Yadav armed with rifle, Manoj Yadav armed with three-not, Laxman Yadav armed with rifle and Luro Yadav, Tribeni Yadav, Jageshwar Yadav, Suresh Yadav, Suchendra Yadav, Gajjo Yadav, Ramdhani Yadav, Pandav Yadav, Dinesh Yadav and Mithilesh Yadav - all armed with Lathi, Farsa and Bhala arrived at the Baithka to the north. Then Luro Yadav called for an assault and then the accused Ranbir Yadav, Manoj Yadav and Laxman Yadav caught the informant''s brother Arjun Yadav and dragged him below the Baithka in the field of Tilakdhari Yadav. Laxman Yadav fatally fired from his rifle at Arjun Yadav. On hue and cry raised by the informant, the accused persons went towards their house dragging the dead body to their house. Then Ramjee Yadav, Lalkun Yadav and Saini Yadav and others came but they were assaulted by Lathi and Farsa. Chowkidar Bhumi Paswan arrived and the accused persons vanished. The occurrence was seen by Rajeshwar Yadav, Dasrath Yadav, Uchit and other co-villagers. A petty occurrence was the motive of the prosecution case and the occurrence was that a litre of diesel to be filled up in the boring machine of Chalitar Yadav and Ranbir Yadav had spilled-out all the diesel for which there had been quarrel between Arjun Yadav and Ranbir Yadav and other accused. The accused party had instituted a case against Arjun Yadav and others for the same occurrence. After registration of the case, investigation was started and charge sheet was submitted after investigation under Sections 147, 148, 149, 302, 341, 323 of the Indian Penal Code and Section 27 of the Arms Act. The charges were explained to the accused then they pleaded innocence and the trial proceeded.
3. The defence of the accused was of false implication.
4. In order to substantiate its case the prosecution examined altogether 17 witnesses they are Basudeo Yadav, cultivator P.W. 1, Uchit Yadav, cultivator P.W. 2, Saini Yadav, cultivator P.W. 3, Hareram Yadav, cultivator P.W. 4, Rajeshwar Yadav, businessman P.W. 5, Kusheshwar Prasad Yadav, cultivator P.W. 6, Ramjee Yadav, cultivator P.W. 7, Dr. Kishore Kumar Madhup - orthopaedic surgeon of Sadar Hospital, Saharsa P.W. 8, Lalkun Yadav, cultivator P.W. 9, Dasrath Yadav, cultivator P.W. 10, Kailu Yadav, cultivator P.W. 11, Ramsogarth Yadav, cultivator P.W. 12, Dhananjay Kumar Srivastava - officer-in-charge, Saharsa police station P.W. 13, Dr. Akil Ahmad Mumtaz - M.O. Addl. P.H.C. Thuthi, P.W. 14, Srikant Singh -constable no. 228 Saharsa Court P.W. 15, Brajeshwar Thakur - A.S.I. Dhamdhaha Police Station P.W. 16, Rajeshwar Pd. Yadav -Advocate P.W. 17. The defence examined Chhotelal Yadav, cultivator D.W. 1, Ram Sundar Yadav, teacher D.W. 2.
5. P.Ws. 8 and 14 were the doctors. The evidence was explained to the accused u/s 313 of the Code of Criminal Procedure. After hearing and analyzing the case the court found the accused to be innocent. The documents adduced on behalf of both sides conclusively proved the enmity. The trial court found that the actual manner of alleged occurrence was not brought to the light of the court. Participation of the accused in such a number was doubted. The I.O. has gone to the place of occurrence and there was evidence that a large number of prosecution witnesses were there but no trampling mark at the place of occurrence was found. Rather the I.O. has found objective evidence of construction of new hut and brick-bats at the house of the accused persons. So the defence version appears to be acceptable. The trial court also opined that the informant and his party were aggressors and the shot fired by them hit Arjun Yadav causing his death. There was no immediate cause of occurrence and other vital contradictions were also noted. So it was found that the prosecution could not discharge its duty in proving the case. Once a doubt is created then the accused persons were entitled to get benefit and they have been granted benefit.
6. The order of acquittal can be reversed only if the prosecution could establish that on the basis of materials on record, the trial court had only one option and that option was to convict the accused. When other options are available then the case of conviction could not have been said to be established. That is not the present case, there were contradiction between the evidence of prosecution witnesses which have been taken into account by the trial court. In view of the contradictions, the accused persons were rightly acquitted. We are of the view that the judgment of acquittal, in the circumstances does not require any interference of this Court. In the result, this Government Appeal is held to be without merit and it is, accordingly, dismissed.
