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2012 DIGILAW 1578 (PAT)

STATE OF BIHAR v. SURENDRA KUMAR

2012-11-23

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) 1. The instant government appeal as well as the criminal revision has been preferred against the judgment of acquittal dated 4.8.1990 passed by the learned 4th Additional Sessions Judge, Begusarai in Sessions Trial No. 62 o 1990 by which the accused persons/respondents, namely, Surendra Kumar, Shiv Shanker Kumar, Bhaso Kumar, Lal Bahadur Yadav, Sudhir Yadav, Upendra Yadav and Umesh Kumar were acquitted from the charges under sections 302, 149, 307, 148 of the Indian Penal Code and section 27 of the Arms Act. 2. The informant Dev Sunder Kumar (PW 5) on 16.6.1982 at 6.50 PM went to the medicine shop of Nizamul Hussain at Bachwara Bazar (Narepur) where he saw his son Surendra Kumar (deceased) standing at the tailoring shop of Idrish Miyan. In the mean time all the accused persons and one Ram Niranjan Chaudhary having country made pistol by forming unlawful assembly came in front of the tailoring shop of Idrish Miayan. Shiv Shankar Kumar was in possession of double barrel gun and a dagger in his hand. Other accused persons were possessing country made pistols with themselves. Surendra Kumar ordered for killing the son of the informant, upon which all the accused attacked upon the informant’s son. Firing of Bhaso Kumar caused injury on the chest of the informant’s son as a result of which he fell down, thereafter, accused Sudhir Yadav, Umesh Kumar, Lal Bahadur Yadav and Shiv Shankar Kumar fired on the deceased with their respective pistols and gun which led to death of the informant’s son. Upendra Yadav and Ram Niranjan Chaudhary entered in nearby fertilizer shop and dragged out the proprietor Gangaram Rai (PW 4) from the shop to the road and both the accused shot at him causing injury upon his mouth, stomach and arm. Gangaram Rai also fell down on the ground and the occurrence was witnessed by Brahamdev Kumar (PW 3), Kari Kumar (PW 2), Praduman Kumar (PW 1) and Sukhilal Kumar (not examined). The fard-beyan resulted into registration of Bachhwara P.S. Case No. 63 of 1982 dated 16.6.1982 under sections 148, 149, 302, 307 of the Indian Penal Code and section 27 of the Arms Act. The Police submitted chargesheet showing the accused Niranjan Chaudhary absconder. 3. The fard-beyan resulted into registration of Bachhwara P.S. Case No. 63 of 1982 dated 16.6.1982 under sections 148, 149, 302, 307 of the Indian Penal Code and section 27 of the Arms Act. The Police submitted chargesheet showing the accused Niranjan Chaudhary absconder. 3. After taking cognizance the case was committed to the Court of Sessions where charges were explained to the accused who pleaded their innocence and trial proceeded. 4. Before the trial court the prosecution has examined 9 witnesses. PW 1 Praduman Kumar, PW 2 Kari Kumar, PW 3 Brahamdev Kumar, PW 4 Gangaram Rai and informant PW 5 were examined as witness to the occurrence. PW 6 Dr. Bibhas Chandra Choubey conducted post mortem upon the dead body of the deceased. PW 7 Dr. Shiv Nandan Prasad Singh examined the injured (PW 4) Gangaram Rai. PW 8 Raghunath Singh investigated the case. The formal witness was examined as PW 9 who proved the seizure list prepared by the Investigating Officer. 5. The Trial Court considered the prosecution version as well as the defence and found some irregularities in the prosecution version. The definite case of the prosecution was that the occurrence had taken place at the shop of Idris Miyan but he was not examined. The trial court found that he was the most important witness and the prosecution has withheld him without any explanation so this was noted prominently by the trial court and the trial court opined that non-examination of Idris Miyan seriously affected the prosecution case. 6. Another circumstance which waived the Trial Court that on non-examination of owner of Chandan Vastraylaya, as this place has been described in the FIR, has also been taken as a circumstance affecting adversely to the prosecution version. 7. The Court considered the ambiguous statement of Gangaram (PW 4) which led to recording of his statement by Mokama Police at Nazarath Hospital, Mokama. PW 4 has himself denied to have made any statement before the Mokama Police at Mokamah Hospital. Although he admitted his signature on the paper which was claimed by him to be blank at that time. Ganga Ram with bomb blast injury admitted in Mokama Hospital which was mentioned in station diary entry (Ext. B) and the Investigating Officer proceeded for hospital and his statement was taken. 8. The Trial Court considered the fact that the prosecution case is not complete on the vital aspects. Ganga Ram with bomb blast injury admitted in Mokama Hospital which was mentioned in station diary entry (Ext. B) and the Investigating Officer proceeded for hospital and his statement was taken. 8. The Trial Court considered the fact that the prosecution case is not complete on the vital aspects. There was no any explanation of bullet injury on the person of Gangaram. There was no bomb blast injury upon his person. 9. The prosecution has to establish its case as it has been claimed by it. In the present case, the court has found that the prosecution has tried to make out a different case at different stages and it fails to prove the charge against the accused beyond the shadow of all reasonable doubts. 10. No one is present to press Cr. Revision No. 314 of 1990, but in view of the fact that the judgment under challenge in both the case is same, we have taken assistance of learned Public Prosecutor. 11. In view of the conflicting nature of evidence, the trial court has acquitted the accused. There is no illegality or impropriety in the judgment. Thus, this Court is of the view that the order of acquittal requires no interference of this Court. 12. In the result, government appeal as well as the criminal revision stand dismissed.