HARENDRA RAI Vs. DURGENDRA RAI

JUDGEMENT

(1.) This revision petition is directed against the order, dated 12.9.1994 passed by the 2nd Addl. Sessions Judge, Bettiah in Sessions Trial No. 289 of 1993 by which the Court below acquitted the opposite-parties from the charges levelled against them.

(2.) The prosecution case in short is that the petitioner (informant) gave his fardbeyan on 11.9.1992 before the SI of Nautan police station at 3.45 a.m. It was alleged that on 10.9.1992,while he was sitting at his darwaja at about 10.30 p.m. along with his brother Nagendra Rai and they were talking together. His grandfather was also sleeping inside the darwaja. It has been stated that the opposite-parties along with five or six unknown persons armed with guns came there and opposite party Durgendra Rai after catching hold of the deceased Nagendra Rai pushed him down on the darwaja and assaulted him with lathi. He then caught hold of the brother of the informant and opposite-party Binod Rai tied his hand on his back. The brother of the informant asked the accused-persons that what was his fault that he was being assaulted. The opposite-party Durgendra Rai is alleged to have said that the deceased Nagendra Rai was a witness in a case for abduction of one Sheo Shanker Prasad. This was the motive of the commission of the aforesaid offence. It has been further stated that the opposite parties Birendra Rai and Jag Mohan Dubey were holding the deceased Nagendra Rai by his armpits and they proceeded towards the east of the darwaja. The informant has stated that he was following the accused-persons keeping a distance of about 10 yards and was requesting the opposite-parties to free his brother Nagendra Rai (deceased) but the opposite-parties did not pay any heed. It has further stated that the opposite-party Asesar Dusadh was asking the informant to go away from the place otherwise he shall be shot dead. It has been stated that the villagers were also following the opposite-party. It has been alleged that the opposite-party jag Mohan Rai gave two lathi blows on the back and arm of the deceased. When the deceased was brought to Brahmas-than than the opposite-party Durgendra Rao fired one shot from his DBBL gun on the waist and stomach of the deceased, the deceased fell down holding his stomach and crying that I am killed. Thereafter, the opposite-party Binod Rao fired a shot from his gun on his head on account of which his brain was blown out. The informant fled away from that place and by that time many villagers had assembled there. It has been stated that a person went at the police camp and he informed about the occurrence (Ext. 3).

(3.) On the basis of the FIR. the present case has been instituted and after completion of investigation the charge-sheet was submitted against the opposite-parties. Subsequently, the cognizance was taken and consequently the trial was concluded, in the result as indicated above. Learned counsel for the petitioner has submitted that prosecution has fully proved the manner of occurrence and in spite of that the Court below has acquitted the opposite-parties. I have perused the impugned order, as well as the records of the case. From the record, it appears that the statement of the informant was recorded on 11.9.1992 and FIR was instituted on the same day, i.e., 11.9.1992 but the same was received in the Court below on 14.9.1992. This creates great doubt in the prosecution case. The evidence of the witnesses in this Court will not re-appraise the same as an appellate Court. The evidence of the witnesses are not consistent and cor-roborative. The prosecution could not prove the case beyond all reasonable doubts and it was not safe for the Court to convict the opposite-parties on such contradictions and unreliable witnesses. I do not find any illegality has been committed by the Court below which may warrant interference by this Court. The Court has rightly acquitted the opposite-parties.