Judgment Abhiram Singh, J. 1. This appeal is directed against the judgment of acquittal dated the 4th August, 1983 passed by the 2nd Additional Sessions judge, East Champaren, Motihar, by which judgment the trial court has acquitted the four respondents. 2. The facts giving rise to this Government appeal are as follows. The charge-sheet has been submitted against the eight accused persons including two shown as absconders. But, however, the trial proceeded against only four respondents all of whom have been acquitted by the judgment referred to above. It is against this judgment of acquittal that the present appeal has been filed. 3. The prosecution case, in brief, is that Nishi Kumari alias Pammi, the sister of the informant Rajani Kant Shrivastava was missinrg from the evening ofthe 29th December, 1976. The father of Nishi Kumari named Ram Chandra prasad PW-1 lodged. a sanha at Raxaul Police Station on the 30th December, 1976 about the missing of bis daughter. On 30th December, 1976 Nishi Kumari returned to her house. She informed her family members that on the 29th december, 1976, Hari Dhangar had come to her house and asked her for some straw. When s! e went near the stock of straw to give some straw to Hari dhangar some companions of Hari Dhangar tied her eyes and mouth and took her away. In the night when she woke up and saw only a window and heard that some people were talking to take her to Assam. When she regained her consciousness the found her in a sugarcane field where Bishwanath Dhangar was standing by her side. She wanted to raise hulla, but, Bishwanath Dhangar threatened her to kill with dagger. In the evening of the 30th December, 1976 bishwanath Dhangar brought her near the stock of straw near her house and left her there and fled away. On 3lst December, 1976 the information was sent to the Police Station that Nishi Kumari had returned home. On the 31st december, 1976 Nagendra Prased, Kainal Kumar Pradhan and Surendra Singh came to the house of the informant. On that very day they took their meals at about 9-30 p. m. When the aforesaid friends of the informant were to leave his house Somar Dhangar came to the house of the informant and called Pius kant Shrivastave the brother of the informant to talk something to him. On that very day they took their meals at about 9-30 p. m. When the aforesaid friends of the informant were to leave his house Somar Dhangar came to the house of the informant and called Pius kant Shrivastave the brother of the informant to talk something to him. Pius kant Shrivastava went with Somar Dhangar and when both of them were going together 2 to 3 persons came near them and wanted to assault Pius Kant Shrivastava. Pius Kant Shrivastava at once returned and informed about the incident to his brother and his frien. is Thereafter the informant along with his brother named Pius Kant Srivastava and his friend went towards the Dhangar toll to enquire about the incident. When they reached near the Dhangar toll, they found that there were 15 to 20 persons along with the respondents Somar dhangar ordered that the informant and his companions should be killed. It is further said that the respondents and others were armed with Tangi and Lathis. The respondents and others are said to have assaulted Pius Kant Shrivastava, the informant and his companions. Pius Kant Shrivastava succumbed to the injuries at the spot. The informant along with Nagendra Prasad and Kamal pradban went to Raxaul hospital on a rickshaw leaving his brother Pius Kant shrivastava there. It is further said that when the informant and his friends were fleeing away from Dhangar Toll they heard that someone was saying that the informant and others should be falsely implicated by setting fire in the houses as serious incident had taken place. The informant and his companions saw flames of fire in the Dhangar toll. One S. I. , B. N. Singh, Raxaul Police Station recorded the fardbeyan of Rajani Kant Shrivastava (informant) in the haspital on 31st December, 1976. The Police getting information went to the spot and found the dead body of Pius Kant Shrivastava near the burnt house of Ganesh dhangar and he also found that blood had fallen there. After completion of investigation charge-sheet was submitted against the respondents and others as mentioned above. After commitment Badri Dhangar and Hari Dhangar died and Bishwanath Dhangar and as Mehadi Dhangar were already absconding trial proceeded against the four respondents only. 4. After completion of investigation charge-sheet was submitted against the respondents and others as mentioned above. After commitment Badri Dhangar and Hari Dhangar died and Bishwanath Dhangar and as Mehadi Dhangar were already absconding trial proceeded against the four respondents only. 4. The respondents had made out a case before the trial court that they were innocent and had been falsely implicated in the case and the manner of occurrence was different than what was alleged by the prosecution. According to the respondents, the informant, his brother Pius Kant Shrivastava and his friends along with 15 to 20 others armed with deadly weapons formed unlawful assembly and wanted to set fire to the houses of Dhangars and for that purpose they went to Dhangar toll. Some Dhangars came there and resisted the highnandedness of the informant and his compauious as a result of which there was assault on both sides and in consequence Pius Kant Shrivastava died at the spot after receiving some injuries. According to the respondents the motive for occurrence was that the informant and the members of his family had suspicion that Bishwanath Dhangar and Hari Dhangar had kidnapped the sister of the informant. 5. The learned counsel appearing on behalf of the State has contended that the learned trial court has not properly appreciated the satisfactory evidence regarding the occurrence adduced on behalf of the prosecution. The reasons given by the learned trial court for disbelieving the witnesses of the prosecution do not appear to be acceptable and cogent. He further submitted that the wrong appreciation of the evidence adduced on behalf of the prosecution by the trial court has caused miscarriage of justice and the findings arrived at by the trial court are perverse. It has been further submitted on his behalf that there are two versions of the same occurrence and the learned trial court has accepted that version of the occurrence which has been given by the respondents but the probability of which is very doubtful, whereas the version of occurrence given by the prosecution should have been believed as it appears to be more probable. It has also contended that the learned trial court has not properly appreciated Ext.9 which is an order dated the 23rd Jure, 1977 and by which cognizance was not taken in the counter case filed by the respondents. It has also contended that the learned trial court has not properly appreciated Ext.9 which is an order dated the 23rd Jure, 1977 and by which cognizance was not taken in the counter case filed by the respondents. On the other hand, the learned counsel appearing for the respondents on behalf of Legal Aid Committee has submitted that the findings arrived at by the trial court are quite proper and reasonable and the same does not need any interference. 6. There is no doubt that in any criminal case the entire onus of proving the guilt of the accused is on the prosecution side to sustain any conviction of the accused. The prosecution has to adduce very satisfactory evidence which should provs the charges levelled against the accused beyond all reasonable, doubts. The prosecution cannot take advantage of the weakness of any case which is made out on behalf of the accused by way of defence. But in a case where there are two versions of the same occurrence and both sides come to the court with a different version, the court has certainly to consider as to whose version of the occurrence appeals to be more probable and convincing. There is also no doubt that if two views are possible regarding the same oc urrence and if the trial court has taken one view then ordinarily his decision should not be interfered with. But in a case where there is a case and a counter case and there are two versions of the same occurrence the court has to be more cautious and has certainly to consider the comparative probability of two versions. It is well known principles that if regarding any occurrence there is a case and a counter case, then either one of the versions is correct or both the versioss are false. But it is never possible that both the versions will be correct. 7. In the instant case, undoubtedly there was a case and a counter case. The case filed by the informant, Rajani Kant Shrivastava against the four respondents and others only proceeded and the case filed as a counter case on behalf of the respondents did not proceed and cognizance was not taken. 7. In the instant case, undoubtedly there was a case and a counter case. The case filed by the informant, Rajani Kant Shrivastava against the four respondents and others only proceeded and the case filed as a counter case on behalf of the respondents did not proceed and cognizance was not taken. The trial court could have certainly disbelieved the case against the respondents also if there is no satisfactory evidence on the record to prove the charges against them beyond all reasonable doubts. In the instant case, I find that the trial court had gone to the extent of giving a finding that the version of the occurrence given by the respondents is more probable. In the light of the principles mentioned above I have to consider whether the prosecution against the respondents has succeeded in adducing satisfactory evidence which has not been accepted as satisfactory by the trial court on flimsy grounds. 8. Before I proceed to discuss the specific evidence adduced on behalf of the prosecution it would be useful to consider some background of the case in which the occurrence has taken place. In this case the occurrence regarding the murder of a young son of an advocate of Motihari has taken place due to strained relations between the family of the advocate and the Dhangars of Dhangar toli of Laxmipur village under Raxaul Police Station. It has come in evidence that the advocate named Ram Chander Prasad Pw-1 had taken settlement of 12 bigbas of land in village Laxmipur Dhangar toli in the year 1955 from Bettiah raj. Since about 20 years before the occurrence he had constructed a residential house in the aforesaid village and he used to live in that house also with his family. It was in the Christmas Holidays that the occurrence took place. As a result of the occurrence the young daughter of the advocate had been kidnapped and his son was also killed on one hand and on the other hand loss caused to the other side was only the burning of the house of Ganesh Dhangar which had brick built wall and thatched roof. The length of the house was only 7 9" and its width was only 5 6". The length of the house was only 7 9" and its width was only 5 6". It has also come in evidence that the family of advocate who suffered was not in a dominating position and he had a house at a lonely place and near his house there were houses of several Dhangars. 9. The prosecution has examined 12 witnesses in all. PW-1 is Ram chandra Prasad who is an advocate of Motihari. He has given the background of the case although he is not an eye-witness of the occurrence. PW-2 is the witness on the inquest report. Nagendra Prasad PW-3 Rajani Kant Shrivastava pw-4 and Kamal Kumar Pradhan PW-6 are eye-witnesses of the occurrence. PW-5 is the doctor who examined PWs-3,4 and 6 PW-7 is the doctor who held autopsy on the dead body of Pius Kant Shrivastava. PW-8 is the wife of PW-1, PW-9 is the minor girl who had been kidnapped. PW-10 is the investigating Officer. PWs-11 and 12 are the formal witnesses. 10. It is to be considered whether PWs-3, 4 and 6 who claim to have seen the occurrence should be believed. The case of the prosecution mainly depends upon the evidence of these three eye witnesses. Undoubtedly, all these three witnesses are injured their injury reports have been proved and the doctor who examined them and has also been examined. These witnesses, who are injured, are most competent witnesses to speak about the occurrence.1 have carefully perused the judgment of acquittal and to my mind it appears that on very flimsy grounds and minor contradiction the learned trial court has disbelieved the evidence of these witnesses. The learned trial court has been mainly influenced on consideration of the facts that it is not possible that when Pius kant Shrivastava (deceased) returned after a talk with some Dhangers who had threatened to assault him, there was a possibility that brother Rajani Kant shrivastava and his friends would go to the house of Dhangars without being armed. The learned trial court has been mainly influenced on consideration of the facts that it is not possible that when Pius kant Shrivastava (deceased) returned after a talk with some Dhangers who had threatened to assault him, there was a possibility that brother Rajani Kant shrivastava and his friends would go to the house of Dhangars without being armed. But considering the background of the case which I have described above it does not appear improbable that the informant and his friends would go to have Dhangar toli in order to enquire into the matter and also to let them know that Dhangars should not show so highhandedness, It has come in evidence that there was previous enemity also regarding some land between the family of the informant and that of the respondents regarding which there was some panchayati. It has also come in evidence that the family of the advocate was the single family whereas Dhangars were in a great majority and, therefore, the advocates family wanted to maintain good relationship so that situation may not worsen. This intention of the family of the advocate also becomes apparent from the fact that although a minor daughter of the advocate had been kidnapped and the family also came to know as to who were person instrumental in getting the minor girl kidnapped still they did not tike recourse to filing a case against the Dhangars. When the occurrence culminate in the death of Pius kant Shrivastava it is than only that the family of the advocate was constrained to launch the prosecution against the respondents. Before the murder had taken place the minor girl of the advocate had returned home and had informed her father and others about the names of the persons who had kidnapped her but still they lodged a simple sanha at the Police Station regarding the missing of the girl and also regarding the return of the girl. At this place it would be also meaningful to mention that although it is alleged on behalf of the respondents that the informant and his companions went to Dhangar toli along with 15 to 20 persons armed with deadly weapons there is not even an iota of evidence on behalf of the respondents that any body from the side of the respondents received any injury. Tow witnesses have been examined on behalf of the defence, one is a formal witness and the other witness examined is a chowkidar. But he also does not say that any body on the side of respondents received any injury or any other house was burnt. A case was made out on behalf of the defence that the police was in collusion with the prosecution. But I do not find anything on the record which can show that the police was in favour of the prosecution in the instant case. I would discuss subsequently as to whose version of the occurrence is correct but the circumstances which I have described above are sufficient to suggest that it was not improbable at all for the informant and some of his friends to go to the Dhangar toli to make them understand as they should not adopt such attitude of high-handedness. 11. In paragraphs 11 and 12 of its judgment the learned trial court has given some discrepancies in the evidence of the witnesses of the prosecution. According to him the prosecution had made out a case that the informant and his friends had gone near the house of Somar Dhangar then how is it that the d ad body of Pius Kant Shrivastava was not found near the house of Somer Dhangar but near the house of Ganesh Dhangar. But the Investigating Officer PW-10 has said in the evidence that the house of Somar Dhangar is only at a distance of about 30 feet Irom the place where the dead body of the Pius Kant Shrivastava was found. He has also said that the dead body of Pius Kant Shrivastaya was found near the house of Ganesh Dhangar. It is quite clear that the distance between the house of Ganesh Dhangar and Somar Dhangar is not much. The distance of 30 feet cannot be said to be long as sometimes we find that even the length of a room is 30 feet. It is quite clear that the distance between the house of Ganesh Dhangar and Somar Dhangar is not much. The distance of 30 feet cannot be said to be long as sometimes we find that even the length of a room is 30 feet. Among the Dhangars it is true that Somar Dhangar was playing important part and the informant and his friends if admitted to go near the house of Somar Dhangar to have some reconciliatory talks and in that course if the occurrence took place at a distance of 30 feet from the house of Somar dhangar it cannot be said that this is such a discrepancy in the evidence of the prosecution that it would make it unreliable. The learned court below has also said that the blood was not found near the house of Somar Dhangar but it was found near the house of Ganesh Dhangar and so the prosecution failed to establish the place of occurrence as alleged by it. I have already described that the distance of 30 feet is so insignificant that the learned trial court should not have led much emphasis on this minor discrepancy. It is never the specific case of the prosecution that the occurrence took place just at distance of 4 or 5 feet from the house of Somar Dhangar. The learned trial court has taken note of the fact that the fire was set not to the house of Somar Dhangar but to the house of Ganesh Dhangar. This fact appears to be quite irrelevant considering the evidence of the prosecution. The clear case of the prosecution is that a serious incident had taken place and the Dhangars wanted to falsely implicate the informant and his companions by setting fire to some houses. It is not the case of the prosecution that the fire was set to the house of Somar Dhangar. If the dhangars had to falsely implicate the informant and his companions they could set fire to any house of any of the Dhangars. Hence it is quite immaterial whether the fire was set either to the house of Somar Dhangar or to the house of ganesh Dhaugar, the distance between whose houses is very short. 12. It also appears that the learned trial court has taken a peculiar view regarding the identification of the respondents (accused ). Hence it is quite immaterial whether the fire was set either to the house of Somar Dhangar or to the house of ganesh Dhaugar, the distance between whose houses is very short. 12. It also appears that the learned trial court has taken a peculiar view regarding the identification of the respondents (accused ). The occurrence is said to have taken place on 31st December, 1976. The trial court has mentioned in paragraph 18 of its judgment that "it is common experience that the night of the last day of the year remains dark and foggy and, hence without any light one is not expected to identify any person".1 am surprised as to how the learned counsel has taken this view that the night of the last day of every year will remain dark and foggy and there can be no identification of any accused in any occurrence. It depends upon on the chance of the weather that the last day of the year will be foggy, or cloudy or not. Sometimes there may be moonlit night and there may not be any foggy or cloudy weather on the last day of the year. In the instant case, no evidence has been adduced on behalf of any side whether the night of the occurrence was foggy and cloudy. Hence in my opinion the learned trial court was not correct in taking judicial notice of such a fact as mentioned above in appreciating the evidence of the prosecution regarding identification of the accused. The evidence adduced on behalf of the prosecution clearly shows that most of the respondents are known to Pius Kant Shrivastava and Rajani Kant Shrivastava and they were also having talks and as such it does not appear improbable that the prosecution witnesses could not identify the accused persons. The house of the informant was at such a place where there was no house of any of the well wishers or relations. Hence in such circumstances if some friends of the informant came to enquire about their welfare, this fact cannot be disbelieved. 13. It is manifest that there are two distinct versions about the same occurrence in the instant case. Hence in such circumstances if some friends of the informant came to enquire about their welfare, this fact cannot be disbelieved. 13. It is manifest that there are two distinct versions about the same occurrence in the instant case. One version of the prosecution is that the informant and his friends went to the Dhangar Toli near the house of Somar Dhangar to have reconcilitory talks and in that recourse the main occurrence took place which resulted in the death of Pius Kant Shrivastava. According to the prosecution the Dhangars set fire to some house in order to falsely implicate them as pius Kant Shrivastava had received serious injury and was to die. 14. The other version is on behalf of respondents that the informant and his friends had gone to the Dhaagar toli to assault the Dhangars in general and set fire to their houses. Now the only question arises as to whose version should be accepted as more probable and acceptable. The first information report lodged on behalf of the respondents side has been marked as Ext. A. This first information report (. Ext. A) clearly supports the prosecution case. From the perusal of this first information report it is apparent that the factum of kidnapping of the minor sister of the informant by Somars son Bishwanath Dhangar is admitted. According to this first information report the incident regarding the setting fire to the house of Dhangars and assault on both sides took place only because of the kidnapping of the minor sister of the informant. This first information report is very important piece of documents and although this has been filed on behalf of the defence (respondents) but makes the case of the prosecution is more probable. Generally when high-handedness regarding arson etc. takes place then it is done only when the aggressive side has a great preparation and they go to the spot being armed with d adly weapons and bent upon to commit some mischief-Ext. A does not show that any body on behalf of the respondents got any injury. This clearly shows that the deceased became injured at the spot. It is said that the fire was set to the house of Hari Dhangar and does not speak about the setting fire to the house of Ganesh Dhangar. It also does not show that any body on behalf of the respondents got any injury. This clearly shows that the deceased became injured at the spot. It is said that the fire was set to the house of Hari Dhangar and does not speak about the setting fire to the house of Ganesh Dhangar. It also does not show that any body on behalf of the respondents got any injury. If there was any high-handedness to be shown on behalf of the prosecution then they must have assaulted some of the dhangars and must have set fire to several houses ot the Dhangars. I have already discussed above as to how it had been found that only thatched shed of a small house was burnt. At least the loss caused to the respondents side could have been described in the first information report. The Grst information report clearly shows that no loss except the setting fire to one house on the side of the respondents was caused. DW-2, who is the Chowkidar went to the Police station along with the informant who went to lodge the first information report against the respondents DW-2 says that fire was set to the house of Ganesh dhangar whereas the aforesaid first information report (Ext. A) shows that fire was set to the house of Hari Dhangar. On a careful perusal of Ext. A and the evidence of DW-2 it is quite clear that the counter case filed on behalf of the respondents was manoeuvred only in order to shield the guilt of the respondents (accused ). From the perusal of Ext.9 filed on behalf of the prosecution it is clear that the learned Chief Judicial Magistrate was quite justified in not taking cognizance in the case filed on behalf of the respondents. I find that there is substance in the contention raised on behalf of the learned counsel for the State that the trial court has taken a hasty conclusion and without appreciating properly evidence of the prosecution that the defence version is more probable. It is true that decision of the Chief Judicial Magistrate in not taking cognizance of the counter case (Ext.9) was not binding on the trial court. But to my mind it appears that the view taken by the learned Chief Judicial Magistrate was quite proper. To my mind it appears that the only irresistible conclu sion which can be drawn is that the case of the prosecution is quite probable and acceptable. But to my mind it appears that the view taken by the learned Chief Judicial Magistrate was quite proper. To my mind it appears that the only irresistible conclu sion which can be drawn is that the case of the prosecution is quite probable and acceptable. I am also surprised to notice the finding of the learned court that it disbelieved the kidnapping story. If the kidnapping story is not believed, there does not remain any motive for the prosecution to set fire to the house of the Dhangars. Hence there is no room for doubt that the judgment of acquittal passed by the learned trial court suffers from several infirmities. 15. In the case of State of U. P. V/s. Gokaran, AIR 1985 SC 131 the supreme Court has said that "we are conscious that we are dealing with an appeal against acquittal and it is true that ordinarily this court does not interfere with the acquittal recorded by High Court but when incrimin ating evidence of a satisfactory character is brushed aside mainly by relying upon a few circumstances which do not go to detract from the value of such incriminating evidence it becomes the duty of this court to interfere with the acquittal in order to redeem the course of justice. On a consideration of the judgment of acquittal recorded by the High Court and after hearing Counsel on either side we find that the High Court has adopted a hyper-technical approach to the entire prosecution case, particularly the direct ocular evidence furnished by the three injured witnesses whose presence at the scene of occurrence could not be doubted and much has been made of the circumstances which do not detract from their evidence. We shall presently deal with those circumstance on which the High Court has relied resulting in an unwarranted acquittal". 16. In the instant case also I find that incriminating evidence of satisfactory character had been adduced on behalf of the procecution but still learned trial court disbelieved the same on flimsy grounds. In the instant case also the three injured witnesses whose presence at the scene of occurrence could not have been doubted have been disbelieved by the trial court. Nagendra Prasad (PW-3), rajani Kant Shrivasatva (PW-4) and Kamal Kumar Pradhan (PW-6) are the witnesses who received injuries and they have made consistent statements. In the instant case also the three injured witnesses whose presence at the scene of occurrence could not have been doubted have been disbelieved by the trial court. Nagendra Prasad (PW-3), rajani Kant Shrivasatva (PW-4) and Kamal Kumar Pradhan (PW-6) are the witnesses who received injuries and they have made consistent statements. They have not only named the assailant who assaulted them but they have also named the assailant who participated in assaulting Pius Kant Shrivastava who succumbed to the injuries at the spot. I do not find any reason to disbelieve the testimonies of these three aforesaid injured witnesses. The doctor, who examined these injured witnesses, has been examined and in the injury reports too have been proved. The aforesaid witnesses have clearly said that all the four respondents were armed with tangi and each of them assaulted Pius Kant Shrivastava with the weapons in his hand. If anyone is assaulted by several persons with tangi it can be easily presumed that they had the common intention to commit murder of that man. Hence in my opinion the prosecution has succeeded in proving the charges levelled against the respondents beyond all reasonable doubts- In the result the appeal succeeds and judgment of acquittal passed by the learned court below is set aside. 17. All the four respondents are convicted under Sections 148 and 302/34 of the Indian Penal Code for having formed an unlawful assembly and committed rioting in prosecution of the common object of the assembly, viz, to assault the informant and his companions and also to kill Pius Kant Shrivastava and each of them is sentenced to undergo rigorous imprisonment for a period of two years under Sec.148 of the Indian Penal Code and to imprisonment for life under Sec.302/34 of the Indian Penal Code. The respondent named panchoo Dhangar is further convicted under Sec.326 of the Indian Penal code for having voluntarily caused grievous hurt to Rajani Kant Shrivastava by means of Tangi and is sentenced to undergo rigorous imprisonment for a period of five years. The respondents named Ram Lagan Dhangar and Ram Bilas dhangar are convicted under Sec.324 of the Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for a period of two years. However the sentences will run concurrently. The respondents named Ram Lagan Dhangar and Ram Bilas dhangar are convicted under Sec.324 of the Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for a period of two years. However the sentences will run concurrently. The trial court is directed to take immediate steps for taking the respondents in custody so that they may suffer the punishment imposed upon them. Appeal allowed.