ASHOK KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) The High court has recorded an order of acquittal reversing the court of Session which had convicted accuser-respondents for offence under Section 302 read with section 34, Indian Penal Code. These two appeals have a common aim, one is by the State of Bihar and the other by the complainant, Ashok Kumar and can be disposed of conveniently by a common order.

(2.) The unfortunate deceased was a professor. It appears that he was a daily morning walker. On the fateful day, he went on a road along side a canal. At some distance, he was accosted by the four respondents, two of whom were armed with guns, one with chopper and the fourth one empty- handed. Firstly, one of the assailants fired a shot at him. On receipt of the injury, he wanted to flee away but the second assailant hit him with shot fired from his gun. The empty handed accused caught hold of the running deceased, whereafter the fourth assailant gave chopper injuries on his neck. Thinking that he was dead, the assailants left the scene of occurrence. Public Witness 4, who was known to the deceased took him to the hospital whereat a police officer was called. It is stated that in an injured condition, the deceased made his statement to the police officer which became the First Information Report, Therein the deceased mentioned the manner in which the occurrence took place, naming all the four respondents as the culprits of the crime as also presence of PW 4 who had witnessed the occurrence. Significantly in that statement, he did not mention the presence of any other person much less that of PWs 1 and 2 who later claimed to be eye-witnesses like Public Witness 4.

(3.) At the eventual trial, the prosecution, adduced evidence of PWs 1, 2, and 4. The court of Session believed them but the High court reversed that finding and took a different view. According to it, PWs 1 and 2 were chance witnesses who could not be there as morning walkers. Further according to the High court, there were discrepancies in the statements of PWs 1 and 2. Public Witness 4 was disbelieved as he was stated to be having a litigation pending with the wife of one of the accused. No comment was offered by the High court to the manner of recording of the first Information Report and as to whether the foundation of the case was laid properly.