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2005 DIGILAW 862 (JHR)

STATE OF JHARKHAND v. NITYANAND PANDEY

2005-12-15

N.DHINAKAR, SUDHANSU JYOTI MUKHOPADHAYA

body2005
Judgment : ( 1 ) RESPONDENT Nos. 1 and 2 on being tried under Sections 307/34 and 324/34, on the allegation that they inflicted injury to PW-7, Manoj Kumar, were not found guilty by the trial Court. Being aggrieved by the said judgment, the present appeal has been filed by the appellant- State of Jharkhand. ( 2 ) THE case of the prosecution is that at about 6 p. m. on 20-8-2002 P. W. 7 went for a walk near his field. After sometime, the informant heard cries of his brother Manoj kumar (P. W. 7) and when came out of his house, saw his brother Manoj Kumar being attacked by the respondents by Tangi and lathi. Having received the injuries, Manoj kumar fell down. According to him, the occurrence was witnessed not only by him, but also by P. Ws. 3, 4 and 5. It is the further case of the prosecution that thereafter, a complaint was given, which was registered as Latehar P. S. Case No. 78 of 2002 (marked as Ext. 4 ). The injured, according to the prosecution, was taken to the Police Station from where he was sent to the Hospital, where he was examined by P. W. 2 Medical Officer (Casulty ). The doctor found the following injuries :" (i) one incised wound 1/2 " x 1/2" x1/4 1/4" over the parietal part of the scalp. (ii) one incised wound 1/2" x 1/4" 1/4" on the right side over the scalp. (iii) Linear bruise 1" x 1/ 4" on the back". Ext. 2 is the report as regards the injuries found on the victim (P. W. 7), in which the doctor has also given his opinion that the injuries are simple in nature. ( 3 ) THE investigation was taken up by p. W. 8, who after examining the witnesses and on completion of the investigation, filed the final report against the respondents. ( 4 ) THE respondents were questioned under Section 313 of the code of Criminal Procedure and they denied all the incriminating circumstances, put to them. ( 5 ) THE learned A. P. P. submitted that the trial Judge was not justified in acquitting the respondents, in view of the evidence of the eye-witnesses and, therefore, the appeal is to be admitted. ( 6 ) WE have considered the contentions and perused the reasons, given by the trial court. ( 5 ) THE learned A. P. P. submitted that the trial Judge was not justified in acquitting the respondents, in view of the evidence of the eye-witnesses and, therefore, the appeal is to be admitted. ( 6 ) WE have considered the contentions and perused the reasons, given by the trial court. It could be seen that the trial Judge has chosen to acquit the respondents on the ground that P. Ws. 1, 3, 4 and 5 did not come out with true version before the Court and, in fact, had given different versions at different points of time. The learned trial Judge noticed that though P. W. 1 claimed to be an eye-witness, in cross-examination, has given a different version by stating that he had seen his brother on the ground with an injury and similarly the trial Judge also disbelieved the evidence of P. W. 3, stating that he was not only a chance witness, but also tried to suppress that he is closely related to the informant (P. W. 1 ). The learned trial judge also disbelieved P. W. 4 on the ground that in cross-examination, he has admitted that he came to know about the occurrence from his father. Therefore, his evidence is hearsay in nature. Similarly, the trial Judge found that P. W. 5 could not have witnessed the occurrence, as he did not speak about the occurrence, since he did not say that he saw the occurrence, when he was examined under Section 161, Cr. P. C. and for the first time, in Court, he had come out with the present version. The learned trial Judge also disbelieved the evidence of P. W. 7, finding it to be contradictory with the evidence of p. W. 8, the Investigating Officer. The trial judge also took into consideration the nature of injury, suffered by P. W. 7, which were found to be simple in nature by the doctor and, as such, in absence of any evidence to show that without treatment for the injuries, he could not have survived Section 307 of the Indian Penal Code is not made out. The trial judge also took into consideration the nature of injury, suffered by P. W. 7, which were found to be simple in nature by the doctor and, as such, in absence of any evidence to show that without treatment for the injuries, he could not have survived Section 307 of the Indian Penal Code is not made out. ( 7 ) ON the above facts, we find it difficult to upset the reasons given by the trial Judge, especially when we keep in mind that the law relating to appeal against acquittal, which is by now well settled, that if two views are possible; one in favour of the accused and other in favour of the prosecution, and the trial Court takes the view in favour of the accused, (respondents), the appellate court will not set aside the said finding of the trial Judge, merely on the ground that the other view in favour of the prosecution could have been taken by the trial Judge. In view of the above discussions, we find no reason to entertain this appeal, which is, therefore, dismissed. Appeal dismissed. --- *** --- .