State of Bihar Vs. Bishwa Nath Khaware and ors. - Court Judgment

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- - uday narayan singh, who had examined the informant as well as the respondents bishwanath khaware, paras nath khaware, shri nath khaware at chandan state dispensary, p. 8. the learned sessions judge after considering the evidence on record observed that the prosecution has failed to establish the genesis of the occurrence. 2. 3 and 4 who claimed to be the eye witnesses to the occurrence are not reliable witnesses. 7) proved in the case, clearly shows that the occurrence had taken place at the alleged place of occurrence. the delay in the examination of the witnesses is well explained. he was sitting on the platform of his well and his labourers were working in the maize field. 7 it is clearly mentioned that this witness and p. and no reliable witness has been examined to corroborate the testimony of the informant that the occurrence took place at the alleged place in the alleged manner, if under such facts and circumstances, the learned trial court has acquitted the respondents. rekha kumari, j.1. this appeal by the state of bihar is directed against the judgment dated 19.6.1992 passed by sri b. k. thakur, sessions judge, bhagalour in sessions trial no. 260 of 1983 acquitting all the respondents of the charges levelled against them. there was one more respondent in this appeal, namely, paras nath khaware who died during the pendency of the appeal and the appeal as against him has abated.2. the prosecution case, as disclosed from the fardbeyan (ext. 4) of the informant narendra nath khaware is that in the morning of 13.6.1982 at about 6.00 a.m. the informant along with his son diwakar khaware was getting his maize field situated adjacent east to his house, weeded out by the labourers when his own brother respondent paras nath khaware (since dead) came and protested. in the meantime, respondent bishwanath khaware, son of paras nath khaware and respondent shrinath khaware, the grand son of paras nath khaware reached there and started abusing the labourers and drove them away. the informant told that the field belonged to him and why were they objecting. on this all the three respondents started pelting brick bats. they also retaliated in defence. meanwhile the villagers came and intervened and the respondents went away. it is further alleged that the informant and his son diwakar khaware continued with the work in the field when at about 10.00 a.m. all the respondents armed with lathi. garasa, bhala, pharsa, tangi rushed towards them. seeing them, out of fear, the informant and his son diwakar khaware fled and entered into the nearby house of one ramdhani jha and bolted themselves in a room. the main gate of the house, however, remained open. so, the respondents also entered inside the house of ramdhani jha and some of the respondents by breaking open the bolt (hurka) of the room dragged them out in the angan and respondent bishwanath khaware gave a bhala blow in the stomach of his son diwakar khaware. his son fell down. respondent paras math khaware then assaulted him with pharsa on his head and other respondents assaulted him with weapons in their hands and diwakar khaware died there. it is also alleged that when the informant tried to save his son, respondent mihir jha with pharsa, saroj jha and shrinath khaware with lathi assaulted him. he fell down there. it is also said that ramdhani jha. basant kumar jha, surendra jha and sachidanand jha saved him.3. sri n.p. singh, assistant sub inspector of police of chandan police station then arrived at the house of ramdhani jha at village baghmari and recorded the above fardbeyan of narendra nath khaware. on the basis of the above fardbeyan, the formal f.i.r. (ext. 5) was drawn up. the police after investigation submitted chargesheet against the respondents.4. it may be mentioned that according to the evidence of p.w. 1 (informant) respondent digvijay jha is son-in-law of the youngest bother of the informant, namely, upendra nath khaware and respondent uday jha is his own brother and respondent mihir jha and saroj jha are cousins of digvijay jha.5. all the respondents were charged under sections 148 and 302/149 of the indian penal code. respondent bishwanath khaware was further charged under section 302 of the indian penal code. respondent mihir jha was further charged under section 324 of the indian penal code and respondents saroj jha and shrinath khaware were charged under section 323 of the indian penal code. they pleaded not guilty to the charges.6. the defence of the accused respondents, as gathered from the suggestions given to the p.ws. and the documents filed by them, is that on that date at about 7-8 a.m. respondents bishwanath khaware and shri nath khaware were working in their maize field when narendra nath khaware (informant) and diwakar khaware (deceased) and others armed with lathi, bhala etc. went there and forbade them. respondent paras nath khaware reached there and protested whereupon respondents paras nath khaware. bishwanath khaware and shrinath khaware were assaulted by the informant party for which paras nath khaware lodged chandan p.s. case no. 80/82 and that the respondents were falsely implicated in this case and that no occurrence as alleged took place. the defence of the respondents also is that on account of land dispute, respondent digvijay jha and his brothers were falsely implicated in this case.7. the prosecution in order to substantiate the charges examined, in all, nine witnesses. among them p.w. 1 narendra nath khaware is the informant. p.w.2 kamru mahto is a witness on the point of occurrence. p.w. 3 amarnath khaware and p.w. 4 shashi nath khaware are sons of the informant who also claim to be the eye witnesses to the occurrence. p.w. 5 surendra jha has been tendered for cross examination and has not stated anything about the occurrence. p.w. 6 is dr. uday narayan singh, who had examined the informant as well as the respondents bishwanath khaware, paras nath khaware, shri nath khaware at chandan state dispensary, p.w. 7 is lalit kumar besra. inspector of police. a part investigating officer, who has simply recorded the statements of some of the witnesses and then submitted charqesheet, p.w.8 is dr. n.m. sharma, who had conducted the post mortem examination on the dead body of the deceased of this case and p.w. 9 md. shakur, p.p.'s clerk is a formal witness who has proved the fardbeyan (ext. 4). formal f.i.r. (ext. 5). seizure list (ext. 6), some paras of the case diary (ext. 7 and 7/1). he has also proved the fardbeyan (ext. b). formal f.i.r. (ext. c) of the case filed by respondent paras nath khaware and some paragraphs of the case diary (ext. d) etc.8. the learned sessions judge after considering the evidence on record observed that the prosecution has failed to establish the genesis of the occurrence. p.ws. 2. 3 and 4 who claimed to be the eye witnesses to the occurrence are not reliable witnesses. no f.i.r. named witness except surendra jha has been examined. the i.o. of the case has also not been examined and, therefore, his finding at the p.o. could not be established. he hence, held that though diwakar khaware was killed on or about the date of occurrence, the prosecution has not come with the real story and he accordingly acquitted the respondents.9. learned a.p.p. appearing for the state submitted that the learned sessions judge has laid emphasis on genesis of occurrence and the place of occurrence but the paragraphs of the case diary (ext. 7) proved in the case, clearly shows that the occurrence had taken place at the alleged place of occurrence. he further submitted that the eve witnesses of the occurrence has been disbelieved by the learned sessions judge mainly on the ground that they were examined by the i.o. after a long delay of eight months: but only after a few days of the lodging of the case, a protest petition was filed that the i.o. has been gained over by the accused persons. so. the i.o. knowingly tried to damage the prosecution case and, therefore, the i.o. did not examine the eye witnesses and when the part i.o. came, the witnesses were examined. so. the delay in the examination of the witnesses is well explained. his submission also is that as the i.o. was gained over, he intentionally did not appear for his evidence in spite of steps taken by the prosecution and this aspect was not considered by the learned sessions judge. it was also submitted by him that as regards the non examination of the f.i.r. named witnesses. the informant in his evidence has stated that they have been won over by the respondents.10. learned counsel for the respondents submitted that the sessions judge has given cogent reasons in arriving at his conclusion and that if two views are possible the view of the trial court has to be accepted.11. at the outset i would discuss whether the deceased was murdered at the time of the alleged occurrence and whether the informant had received any injury at that time. in this connection the evidence of the two doctors are relevant.12. p.w. 8 dr. n.m. sharma. who had conducted the post mortem examination has deposed that on 13.6.1982 at state dispensary, deoghar he held the post mortem examination on the dead body of diwakar nath khaware (who is admittedly the deceased of this case) and found the following ante mortem injuries on his person:i) lacerated wound over scalp (posterior dart of left parietal bone) 2' x 1' x bone deep.ii) incised penetrating wound on right mid inguinal region 1 1/2' x 1/2' x abdomen deep.iii) incised wound over left shoulder 2' x 1/2' x 1/2'.iv) multiple bruises over the back ranging from 3' to 5'x 3/4' (five in number).13. he has further stated that on opening the abdomen and on further dissection of injury no. (ii) it was found that left inguinal canal was cut and there was puncture of large gut at one place with presence of about 8 oz. of blood in abdominal cavity. the discending aorta was punctured along with adjacent structures.14. the doctor has opined that the death was caused due to shock and haemorrhage as a result of the above mentioned injuries. specially injury no. (ii). he has further opined that injury no. (ii) and (iii) were caused by sharp cutting weapon and injury nos. (i) and (iv) were caused by hard and blunt substance and that injury no. (i) was possible also by hard portion of pharsa.15. thus, from the evidence of the doctor. it is clear that the deceased was stabbed in his abdomen by sharp cutting weapon and he was assaulted on other parts of his body by hard blunt and sharp cutting weapons and that the deceased died a homicidal death on account of the above injuries. the opinion of the doctor also is that time elapsed since death was within 12 hours. the doctor had examined the dead body on 13.6.1982 and the post mortem report (ext. 3) shows that the post mortem examination was held at 4.15 p.m. the occurrence in this case had taken place on 13.6.1982 at 10.00 a.m. therefore, the time of death as found by the doctor also corresponds to the time of the alleged occurrence.16. so, it is proved by the evidence of the doctor that diwakar khaware was murdered on the date and at or about the time of the aliened occurrence.17. p.w.6 dr. uday narayan singh, another doctor has stated that on 13.6.1982 at chandan state dispensary at 6.15 p.m. he examined narendra nath khaware (informant) and found the following injuries on his person:(i) one incised wound 1 1/2' x 1/4'x bone deep on left side of scalp.(ii) one lacerated wound 1/2' x 1/4' x 1/4' x skin deep on posterior part of right side of scalp.(iii) one bruise 1/2' x 1/2' on left eyebrow. (iv) one bruise 2 1/2' x 1/2' on left forearm.(v) one bruise 1 1/2' x 1/2' on left elbow.(vi) one bruise 1 1/4' x 1/4' on left side of chest.(vii) one scratch 1/3' x 1/3' on right elbow.18. the doctor has opined that all the injuries were simple in nature and caused by hard blunt substance except injury no. (i) which was caused by sharp cutting weapon. he has further opined that the age of the injuries was within 24 hours.19. the evidence of this doctor, hence, also shows that the informant had received injuries by hard blunt and sharp cutting weapons at or about the time of the alleged occurrence.20. the evidence of the doctor further shows that he had on that date at 6.45 p.m. examined respondent bishwanath khaware and found the following injuries on his person:(i) one lacerated wound 1/3' x 1/3' muscle deep on the tip of left index finger and fracture of distal bone of the same finger.(ii) one bruise 3'x 1/2' on right shoulder.(iii) one bruise 3' x 1/2' on right arm.(iv) one bruise 2'x 1/2' on right forearm.(v) one incised wound 1/3' x 1/4' x skin deep on posterior part of scalp.(vi) one incised wound 1/3' x 1/4' x muscle deep on right leg.(vii) one bruise 1 1/2' x 1/2' on lateral part of left ankle.(viii) one bruise 1 1/4' x 1/2' on left leg.(ix) one bruise 4' x 1/2' on right thigh.(x) one bruise 3' x 1/2'on left side back (lower part).(xi) two bruises (1) 5' x 1 1/2' (b) 4'x 1/2' on left side back upper portion.he opined that all the injuries were simple in nature caused by hard blunt substance except injury nos. (v) and (vi) which were caused by sharp cutting weapon and injury no. (i) was grievous in nature and that the age of the injuries was within 24 hours of the occurrence.21 . the evidence shows that he further on that date at 7.45 p.m. examined respondent paras nath khaware (since dead) and found the following injuries on his person:(i) one lacerated wound 1/3' x 1/4' x skin deep on the tip of the right middle finger.(ii) one bruise 2 1/2' x 1/2' on right palm.(iii) one bruise 2 1/2' x 1/2' on right forearm.(iv) one incised wound 1 1/4' x 1/4' x skin deep on right side of scale.(v) one bruise 3'x 1/2' on left forearm near elbow along with dislocation of left elbow joint.(vi ) one bruise 2 1/2' x 1/2' on lower part of right thigh.(vii) one bruise 4' x 1/2' on right leg.(viii) one bruise 3 1/2' x 1/2' on left knee.(ix) one bruise 2 1/2'x 1/2' on left leg.(x) one bruise 4' x 1/2' on lower cart of left side back.he has opined that injury nos. (i), (ii), (iii). (vi), (vii). (viii), (ix) and (x) were simple in nature caused by hard blunt substance and injury no. (iv) was simple caused by sharp cutting weapon and injury no. (v) was grievous in nature caused by hard blunt substance. he has further opined that the age of the injuries was within 24 hours.22. the doctor had also examined respondent shrinath khaware on that date at 7.15 p.m. and found the following injuries on his person:(i) one lacerated wound 1/2' x 1/4' x skin deep along palmous surface of left thumb.(ii) one bruise 1/2' x 1/2' on left index finger with dislocation.(iii) one bruise 1' x 1/2' on right forearm.(iv) one scratch 1/4' x 1/4' on root of right index finger.(v) one scratch 1/3' x 1/4' just below right eve.(vi) one scratch 1/4' x 1/4' on bridge of nose.(vii) one bruise 4'x 1/2' on left side of chest.(viii) one bruise 2' x 1/2' on left shoulder.(ix) one bruise 4' x 1/2' on lower part of left side back.(x) one bruise 4'x 1/2' on upper part of left side back.(xi) two bruises 3'x 1/2' each on right side of back.he has opined that all the injuries were simple caused by hard blunt substance except injury no. (ii) which was grievous in nature and that the age of the injuries was within 24 hours from the time of examination.23. the evidence of the doctor, hence, also shows that respondents bishwanath khaware, shrinath khaware and paras nath khaware had also received injuries caused by hard blunt substance and sharp cutting weapons. his evidence also shows that he had examined these respondents on 13.6.2002 in between 6.45 p.m. and 7.45 p.m. and the age of the injuries was within 24 hours. therefore, the injuries correspond to the time of occurrence mentioned in the fardbeyan (ext. b) of the case lodged by the respondents.24. thus from the evidence of the two doctors, it is proved that diwakar khaware, son of the informant, was murdered and the informant had received injuries on the alleged date at about the alleged time of occurrence.25. the main question to determine, however, is that whether the murder had taken place in the manner as alleged and the learned trial court was justified in acquitting the respondents.26. at this stage it may be mentioned that in appeal against acquittal, the approach of the appellate court should be different from that of an appeal against conviction. the general principles of presumption of innocence of the accused and the benefit of reasonable doubt given by the trial court to the accused should be kept in mind. the high court should not interfere only because it feels that sitting in a trial court, it would have preferred conviction. unless the order of the trial court is unreasonable and perverse, the order of acquittal is not liable to be interfered with.27. now. as already mentioned, the learned trial court has relied mainly upon the following circumstances in acquitting the respondents:(i) the genesis of the occurrence has not been proved.(ii) the i.o. of the case has not been examined and, therefore, the place of occurrence has not been proved.(iii) the injuries on the accused have not been explained and the real story has been suppressed.(iv) no independent witness has been examined to support the prosecution case.28. in order to bring home the charges against the respondents, the prosecution has examined four eye witnesses. they are p.ws. 1.2. 3 and 4.29. p.w. 1 narendra nath khaware has stated that on 13.6.1982 at 6.00 a.m., he was getting his maize field weeded out along with his son diwakar khaware by the labourers when respondents paras nath khaware. bishwanath khaware and shrinath khaware came and abused the labourers. his son protested and on this, these respondents started throwing brick bats on them. the villagers intervened and separated them. they continued to do the work. he has further stated that on that very date at 10.00 a.m. he saw a mob of 15-16 persons armed with lethal weapons came towards them. they fled from there and hid themselves in the house of ramdhani jha. he identified the respondents paras nath khaware armed with garasa, bishwanath khaware armed with bhala. shrinath khaware armed with lathi, mihir jha armed with pharsa, digvijay jha armed with pharsa, saroj jha armed with tangi. uday jha armed with tangi in the mob. all of them entered into the house of ramdhani jha and respondent mihir jha, digvijay jha, uday jha and saroj jha after breaking the bolt of the western room, brought him and his son in the angan (courtyard) and they started assaulting them with their respective weapons. he has then stated that respondent mihir jha gave a pharsa blow on the head of his son respondent digvijay jha assaulted him on head with pharsa, paras nath khaware assaulted him with garasa on shoulder, saroj jha and uday jha assaulted his son with tangi and shrinath assaulted him with lathi and that when he went to save his son. he was assaulted by mihir jha with pharsa on head and he fell down. bishwanath khaware pierced a bhala blow in the abdomen of his son. his son fell down and died. the evidence of this witness further is that the a.s.i. soon came and recorded his fardbeyan.30. p.w.2 has stated that on the alleged date at about 10.00 a.m. he had gone to purchase potato at village bagbari at the house of basant kumar jha when he saw that two tractors loaded with persons numbering about 15-16 came to the orchard. in the meantime, he saw nunu babu (informant) and his son diwakar khaware rushing and entering inside the house of ramdhani jha and subsequently the persons who had come on the tractor also entered the house of ramdhani jha and out of them he identified three persons viz. respondent paras nath khaware. bishwanath khaware and shrinath khaware. shrinath was armed with lathi. bishwanath was armed with bhala and paras nath was armed with kulhari. his evidence further is that thereafter he saw those persons retreating and then the villagers assembled and he along with the villagers went inside the house and saw diwakar khaware dead. he saw the injuries on the person of the deceased and also of the informant.31. p.w. 3 amar nath khaware has stated that on 13.6.1982 at about 7.00 a.m. he was sitting on the platform of his well and his labourers were working in the maize field. his father and brother were standing there. in the meantime. paras nath khaware, bishwanath and shrinath came and started abusing and pelting brick bats and the labourers fled away. they protested when the respondents abused them also. in the meantime, the villagers reached and intervened and the respondents went away. he has further stated that after some time the above respondents along with 10-12 persons came on trekker and kept the trekker in the orchard and rushed towards them. he identified besides the above named three respondents, respondents mihir jha, digvijay jha, uday jha and saroj jha. they were armed with lathi, bhala, garasa, tangi and pharsa. his father and brother diwakar, seeing them, went inside the house of ramdhani jha. the mob also entered the house of ramdhani jha. he (p.w.3) also followed them and after sometime he climbed on the wall of the house and saw that the above named seven persons had surrounded his father and brother diwakar khaware and were assaulting them. respondent paras nath khaware assaulted his brother with garasa on back. bishwanath assaulted him with bhala on abdomen and mihir jha assaulted his father with pharsa on head. both the injured fell down and then the respondents fled away. then he went inside the house and saw his brother dead and father injured.32. p.w. 4 shashi nath khaware has stated that on the alleged date at about 10.00 a.m. he was returning from deoghar when he saw that two trekkers stopped in front of his house. there were 15-20 persons armed with weapons in their hands. he identified respondent paras nath khaware, bishwanath khaware, shri nath khaware, digvijay jha, mihir jha, saroj jha and uday jha among them. he has further stated that seeing them his father and brother diwakar khaware entered the house of ramdhani jha and the respondents followed them. he (p.w.4) also went there. he saw that bishwanath gave bhala blow on the abdomen of his brother. shrinath assaulted him with lathi on back, uday jha gave a tangi blow on his head and that respondent mihir jha assaulted his father on his head with pharsa. his brother died and the respondents fled away.33. thus, it appears that the above eve witnesses have supported the prosecution case.34. among these witnesses, p.w. 2 belongs to a different village and had gone to the p.o. village to purchase potato. he is, thus, a chance witness. the evidence of p.w. 7, part i.o. also shows that he was examined on 17.2.1983 i.e. after eight months of the occurrence. the learned trial court in view of these facts has disbelieved the testimony of the witness.35. it may be mentioned that if a chance witness is an independent witness, his evidence should not be discarded if it is otherwise trustworthy. in this case though the witness is a chance witness, he appears to be an independent witness. there is nothing to show that he is either interested in the prosecution or inimical to the respondents. but he was not named in the fardbeyan. he was also examined by the i.o. after eight months of the occurrence and no explanation has been given as to why he was not examined earlier. his evidence also shows that a son of the informant is a lawyer and he had taken this witness before the police for his statement. therefore, it cannot be ruled out that the witness is a tutored one. i, therefore, also find that the testimony of this witness should not be relied upon.36. as regards p.ws. 3 and 4. both of them are sons of the informant. but though the informant has named many witnesses in the fardbeyan as persons present at the p.o. he has not named them either in the fardbeyan or in his evidence. their statements were also recorded by the i.o. on 17.2.1983 i.e. after eight months of the occurrence and no explanation has been given by the prosecution regarding their non examination also for such a long time. the learned sessions judge on these grounds has disbelieved the evidence of these two witnesses.37. learned a.p.p. has submitted that these two witnesses are accused in the counter case filed by the respondents and they were absconding and as such they could not be examined earlier by the i.o.38. these two witnesses being the sons of the informant are interested witnesses. p.w. 3 has stated that he had given statement before the i.o. on the date of occurrence but in the evidence of p.w.7 it is clearly mentioned that this witness and p.w.4 were examined on 17.2.1983 for the first time. no explanation has been given by the prosecution as to why they were not examined earlier. he (p.w.3) is also not named in the fardbeyan.p.w. 4 is also not named in the fardbeyan. he stated that he had gone to his injured brother and he was present at the p.o. when the i.o. came, but he has admitted that he did not give any statement before the i.o. at that time and gave his statement after six months of the occurrence. there is no evidence on record to show that as these two witnesses were absconding and so, their statements could not be recorded earlier.39. it may be mentioned here that the lower court record shows that the informant on 21.7.1982 had filed a protest petition before the additional chief judicial magistrate alleging therein that the a.s.i. (first i.o.) had been gained over by the accused and was not recording the statements of the witnesses properly and had been acting in a manner so as to damage the prosecution case. in that petition he has named his son amar nath khaware as a witness but the informant (p.w. 1). as already mentioned has not named amar nath khaware (p.w.3) as a witness in the fardbeyan. so, in spite of the protest petition it cannot be said that the a.s.i. deliberately did not record the statement of amar nath or p.ws. 2 and 4.40. therefore, as those two witnesses, namely. p.ws. 3 and 4 are interested witnesses and also accused in the counter case filed by the respondents and they are not named in the fardbeyan and were examined by the i.o. after about eight months of the occurrence and there is no explanation for their non examination for such a long time. i agree with the learned sessions judge that the testimony of these witnesses do not deserve credence.41. hence, there remains the evidence of only p.w.1 (informant). the fardbeyan (ext. 4) shows that it corroborates the testimony of p.w. 1 in material particulars. the evidence of the doctor (p.w. 6) also shows that he had received injuries at the time of the alleged occurrence. so, he also appears to be a competent witness. his evidence also finds corroboration from the evidence of the doctor (p.w. 8) who had conducted the post mortem examination on the dead body of the deceased.42. but. though p.w. 1 has supported the prosecution case and he is a competent witness, he is also an interested witness being the informant. the fardbeyan (ext. b) of the case filed by respondent paras nath khaware also shows that he is an accused in that case: and no independent witness has come to support his case. according to the fardbeyan (ext. 41 ramdhani jha in whose house the occurrence is said to have taken place. basant kumar, jha. surendra jha and sachidanand jha of the p.o. village had come and saved the informant, but none of the witnesses except surendra jha (p.w. 5) has been examined but he has also not stated anything about the alleged occurrence. the evidence of p.w. 1 is that ramdhani jha. savitri devi and renu devi have been won over by the respondents. but no explanation has been given as to why basant kumar jha, sachidanand jha were not examined. p.w. 5 has also stated that he was not in the village on the alleged date of murder and he has not been declared hostile.43. as regards the genesis of occurrence, the evidence of p.w.1 is that on the date of occurrence at about 6.0 a.m. he was getting his maize field weeded out by the labourers along with his son. when respondents paras nath khaware. bishwanath khaware and shrinath khaware came and protested and pelted brick bats and then the villagers came and intervened and the respondents went away and thereafter they came along with other accused persons and committed the murder. but no other witness has come to support him. p.w. 3. a son of the informant of course has tried to support this. but, as already pointed out his evidence cannot be relied upon. the labourers were the most important witnesses on this point. the evidence of p.w. 1 is that suresh pandit and his sister were working in the maize field. but none of them has been examined. the i.o. has also not been examined to prove that there was any sign of weeding out of the maize field or there was any brick bat there. so, on the solitary evidence of p.w. 1 it is difficult to believe that any incident, as alleged, which ultimately led to the alleged murder had taken place. i, thus, agree with the learned trial court that the genesis of the occurrence has not been proved in this case.44. then. in this case, the first i.o. who had visited the p.o. has not been examined. of course, non examination of the i.o. is not always fatal for the prosecution case. but in this case the evidence of the doctor (p.w. 6) shows that respondents bishwanath khaware, parasnath khaware and shrinath khaware had received a number of injuries each including grievous injury and ext. b shows that respondent paras nath had lodged a case on the same date which was registered as katoria p.s. case no. 80/82 under sections 147, 148, 149 and 307 of the indian penal code, against the informant, his son diwakar khaware (deceased) and others alleging that they assaulted those respondents being armed with lathi, bhala, pharsa on 13.6.1982 at about 7-8 a.m. (only about two hours before the alleged occurrence of the case) when they were sowing maize in his field. therefore, the evidence of the i.o. was important in this case to drove where actually the occurrence in question had taken place; and in absence of the evidence of the i.o. on this point, a prejudice has been caused to the respondents. learned a.p.p. has submitted that the protest petition filed against the i.o. would show that the i.o. has been won over and for this reason he did not deliberately attend the court. but from mere filing of the protest petition, it cannot be said that the i.o. has been won over. nothing substantial has been pointed out by the learned a.p.p. to show that actually the i.o. was won over; and even if he has been won over the fact remains that he (i.o.) has not been examined and his objective finding as to where actually the occurrence had taken place is wanting in the case. the prosecution has proved a paragraph (ext. 7) of the case diary to show that the dead body of the deceased was found by the i.o. at the house of ramdhani jha but the learned trial court has rightly observed that in absence of the i.o., on the basis of that entry, it cannot be said that actually the dead body was found there. besides this, mere presence of the dead body without any mark of violence is not enouqh in this case, to hold on the evidence of only p.w. 1 that actually the occurrence had taken place in the house of ramdhani jha.45. therefore, when the genesis of the occurrence has not been proved and the respondents had received injuries near about the time of the alleged occurrence for which they have filed a case against the informant party including the deceased, and as the p.o. in two cases as per f.i.rs. are different, and the i.o. has not been examined to prove that actually the occurrence concerning the death of the deceased took place at the alleged p.o. and no reliable witness has been examined to corroborate the testimony of the informant that the occurrence took place at the alleged place in the alleged manner, if under such facts and circumstances, the learned trial court has acquitted the respondents. i do think that the view taken by the trial court is unreasonable or perverse requiring any interference of this court in appeal.46. in the result, this appeal is dismissed.chandramauli kumar prasad, j.47. i agree.

Judgment:

Rekha Kumari, J.

1. This appeal by the State of Bihar is directed against the judgment dated 19.6.1992 passed by Sri B. K. Thakur, Sessions Judge, Bhagalour in Sessions Trial No. 260 of 1983 acquitting all the respondents of the charges levelled against them. There was one more respondent in this appeal, namely, Paras Nath Khaware who died during the pendency of the appeal and the appeal as against him has abated.

2. The prosecution case, as disclosed from the Fardbeyan (Ext. 4) of the informant Narendra Nath Khaware is that in the morning of 13.6.1982 at about 6.00 a.m. the informant along with his son Diwakar Khaware was getting his maize field situated adjacent east to his house, weeded out by the labourers when his own brother respondent Paras Nath Khaware (since dead) came and protested. In the meantime, respondent Bishwanath Khaware, son of Paras Nath Khaware and respondent Shrinath Khaware, the grand son of Paras Nath Khaware reached there and started abusing the labourers and drove them away. The informant told that the field belonged to him and why were they objecting. On this all the three respondents started pelting brick bats. They also retaliated in defence. Meanwhile the villagers came and intervened and the respondents went away. It is further alleged that the informant and his son Diwakar Khaware continued with the work in the field when at about 10.00 a.m. all the respondents armed with lathi. Garasa, Bhala, Pharsa, Tangi rushed towards them. Seeing them, out of fear, the informant and his son Diwakar Khaware fled and entered into the nearby house of one Ramdhani Jha and bolted themselves in a room. The main gate of the house, however, remained open. So, the respondents also entered inside the house of Ramdhani Jha and some of the respondents by breaking open the bolt (Hurka) of the room dragged them out in the Angan and respondent Bishwanath Khaware gave a bhala blow in the stomach of his son Diwakar Khaware. His son fell down. Respondent Paras Math Khaware then assaulted him with Pharsa on his head and other respondents assaulted him with weapons in their hands and Diwakar Khaware died there. It is also alleged that when the informant tried to save his son, respondent Mihir Jha with Pharsa, Saroj Jha and Shrinath Khaware with lathi assaulted him. He fell down there. It is also said that Ramdhani Jha. Basant Kumar Jha, Surendra Jha and Sachidanand Jha saved him.

3. Sri N.P. Singh, Assistant Sub Inspector of Police of Chandan police station then arrived at the house of Ramdhani Jha at village Baghmari and recorded the above Fardbeyan of Narendra Nath Khaware. On the basis of the above Fardbeyan, the formal F.I.R. (Ext. 5) was drawn up. The police after investigation submitted chargesheet against the respondents.

4. It may be mentioned that according to the evidence of P.W. 1 (informant) respondent Digvijay Jha is son-in-law of the youngest bother of the informant, namely, Upendra Nath Khaware and respondent Uday Jha is his own brother and respondent Mihir Jha and Saroj Jha are cousins of Digvijay Jha.

5. All the respondents were charged under Sections 148 and 302/149 of the Indian Penal Code. Respondent Bishwanath Khaware was further charged under Section 302 of the Indian Penal Code. Respondent Mihir Jha was further charged under Section 324 of the Indian Penal Code and respondents Saroj Jha and Shrinath Khaware were charged under Section 323 of the Indian Penal Code. They pleaded not guilty to the charges.

6. The defence of the accused respondents, as gathered from the suggestions given to the P.Ws. and the documents filed by them, is that on that date at about 7-8 a.m. respondents Bishwanath Khaware and Shri Nath Khaware were working in their maize field when Narendra Nath Khaware (informant) and Diwakar Khaware (deceased) and others armed with Lathi, Bhala etc. went there and forbade them. Respondent Paras Nath Khaware reached there and protested whereupon respondents Paras Nath Khaware. Bishwanath Khaware and Shrinath Khaware were assaulted by the informant party for which Paras Nath Khaware lodged Chandan P.S. Case No. 80/82 and that the respondents were falsely implicated in this case and that no occurrence as alleged took place. The defence of the respondents also is that on account of land dispute, respondent Digvijay Jha and his brothers were falsely implicated in this case.

7. The prosecution in order to substantiate the charges examined, in all, nine witnesses. Among them P.W. 1 Narendra Nath Khaware is the informant. P.W.2 Kamru Mahto is a witness on the point of occurrence. P.W. 3 Amarnath Khaware and P.W. 4 Shashi Nath Khaware are sons of the informant who also claim to be the eye witnesses to the occurrence. P.W. 5 Surendra Jha has been tendered for cross examination and has not stated anything about the occurrence. P.W. 6 is Dr. Uday Narayan Singh, who had examined the informant as well as the respondents Bishwanath Khaware, Paras Nath Khaware, Shri Nath Khaware at Chandan State dispensary, P.W. 7 is Lalit Kumar Besra. Inspector of Police. a part Investigating Officer, who has simply recorded the statements of some of the witnesses and then submitted charqesheet, P.W.8 is Dr. N.M. Sharma, who had conducted the post mortem examination on the dead body of the deceased of this case and P.W. 9 Md. Shakur, P.P.'s Clerk is a formal witness who has proved the Fardbeyan (Ext. 4). formal F.I.R. (Ext. 5). Seizure list (Ext. 6), some paras of the case diary (Ext. 7 and 7/1). He has also proved the Fardbeyan (Ext. B). formal F.I.R. (Ext. C) of the case filed by respondent Paras Nath Khaware and some paragraphs of the case diary (Ext. D) etc.

8. The learned Sessions Judge after considering the evidence on record observed that the prosecution has failed to establish the genesis of the occurrence. P.Ws. 2. 3 and 4 who claimed to be the eye witnesses to the occurrence are not reliable witnesses. No F.I.R. named witness except Surendra Jha has been examined. The I.O. of the case has also not been examined and, therefore, his finding at the P.O. could not be established. He hence, held that though Diwakar Khaware was killed on or about the date of occurrence, the prosecution has not come with the real story and he accordingly acquitted the respondents.

9. Learned A.P.P. appearing for the State submitted that the learned Sessions Judge has laid emphasis on genesis of occurrence and the place of occurrence but the paragraphs of the case diary (Ext. 7) proved in the case, clearly shows that the occurrence had taken place at the alleged place of occurrence. He further submitted that the eve witnesses of the occurrence has been disbelieved by the learned Sessions Judge mainly on the ground that they were examined by the I.O. after a long delay of eight months: but only after a few days of the lodging of the case, a protest petition was filed that the I.O. has been gained over by the accused persons. So. the I.O. knowingly tried to damage the prosecution case and, therefore, the I.O. did not examine the eye witnesses and when the part I.O. came, the witnesses were examined. So. the delay in the examination of the witnesses is well explained. His submission also is that as the I.O. was gained over, he intentionally did not appear for his evidence in spite of steps taken by the prosecution and this aspect was not considered by the learned Sessions Judge. It was also submitted by him that as regards the non examination of the F.I.R. named witnesses. the informant in his evidence has stated that they have been won over by the respondents.

10. Learned Counsel for the respondents submitted that the Sessions Judge has given cogent reasons in arriving at his conclusion and that if two views are possible the view of the trial court has to be accepted.

11. At the outset I would discuss whether the deceased was murdered at the time of the alleged occurrence and whether the informant had received any injury at that time. In this connection the evidence of the two doctors are relevant.

12. P.W. 8 Dr. N.M. Sharma. who had conducted the post mortem examination has deposed that on 13.6.1982 at State Dispensary, Deoghar he held the post mortem examination on the dead body of Diwakar Nath Khaware (who is admittedly the deceased of this case) and found the following ante mortem injuries on his person:

i) Lacerated wound over scalp (posterior Dart of left parietal bone) 2' x 1' x bone deep.

ii) Incised penetrating wound on right mid inguinal region 1 1/2' x 1/2' x abdomen deep.

iii) incised wound over left shoulder 2' x 1/2' x 1/2'.

iv) Multiple bruises over the back ranging from 3' to 5'x 3/4' (five in number).

13. He has further stated that on opening the abdomen and on further dissection of injury No. (ii) it was found that left inguinal canal was cut and there was puncture of large gut at one place with presence of about 8 Oz. of blood in abdominal cavity. The discending aorta was punctured along with adjacent structures.

14. The doctor has opined that the death was caused due to shock and haemorrhage as a result of the above mentioned injuries. specially injury No. (ii). He has further opined that injury No. (ii) and (iii) were caused by sharp cutting weapon and injury Nos. (i) and (iv) were caused by hard and blunt substance and that injury No. (i) was possible also by hard portion of Pharsa.

15. Thus, from the evidence of the doctor. it is clear that the deceased was stabbed in his abdomen by sharp cutting weapon and he was assaulted on other parts of his body by hard blunt and sharp cutting weapons and that the deceased died a homicidal death on account of the above injuries. The opinion of the doctor also is that time elapsed since death was within 12 hours. The doctor had examined the dead body on 13.6.1982 and the post mortem report (Ext. 3) shows that the post mortem examination was held at 4.15 P.M. The occurrence in this case had taken place on 13.6.1982 at 10.00 a.m. Therefore, the time of death as found by the doctor also corresponds to the time of the alleged occurrence.

16. So, it is proved by the evidence of the doctor that Diwakar Khaware was murdered on the date and at or about the time of the aliened occurrence.

17. P.W.6 Dr. Uday Narayan Singh, another doctor has stated that on 13.6.1982 at Chandan State Dispensary at 6.15 P.M. he examined Narendra Nath Khaware (informant) and found the following injuries on his person:

(i) one incised wound 1 1/2' x 1/4'x bone deep on left side of scalp.

(ii) One lacerated wound 1/2' x 1/4' x 1/4' x skin deep on posterior part of right side of scalp.

(iii) One bruise 1/2' x 1/2' on left eyebrow. (iv) One bruise 2 1/2' x 1/2' on left forearm.

(v) One bruise 1 1/2' x 1/2' on left elbow.

(vi) One bruise 1 1/4' x 1/4' on left side of chest.

(vii) One scratch 1/3' x 1/3' on right elbow.

18. The doctor has opined that all the injuries were simple in nature and caused by hard blunt substance except injury No. (i) which was caused by sharp cutting weapon. He has further opined that the age of the injuries was within 24 hours.

19. The evidence of this doctor, hence, also shows that the informant had received injuries by hard blunt and sharp cutting weapons at or about the time of the alleged occurrence.

20. The evidence of the doctor further shows that he had on that date at 6.45 P.M. examined respondent Bishwanath Khaware and found the following injuries on his person:

(i) One lacerated wound 1/3' x 1/3' muscle deep on the tip of left Index finger and fracture of distal bone of the same finger.

(ii) One bruise 3'x 1/2' on right shoulder.

(iii) One bruise 3' x 1/2' on right arm.

(iv) One bruise 2'x 1/2' on right forearm.

(v) One incised wound 1/3' x 1/4' x skin deep on posterior part of scalp.

(vi) One incised wound 1/3' x 1/4' x muscle deep on right leg.

(vii) One bruise 1 1/2' x 1/2' on lateral part of left ankle.

(viii) One bruise 1 1/4' x 1/2' on left leg.

(ix) One bruise 4' x 1/2' on right thigh.

(x) One bruise 3' x 1/2'on left side back (lower part).

(xi) Two bruises (1) 5' x 1 1/2' (b) 4'x 1/2' on left side back upper portion.

He opined that all the injuries were simple in nature caused by hard blunt substance except injury Nos. (v) and (vi) which were caused by sharp cutting weapon and injury No. (i) was grievous in nature and that the age of the injuries was within 24 hours of the occurrence.

21 . The evidence shows that he further on that date at 7.45 P.M. examined respondent Paras Nath Khaware (since dead) and found the following injuries on his person:

(i) One lacerated wound 1/3' x 1/4' x skin deep on the tip of the right middle finger.

(ii) One bruise 2 1/2' x 1/2' on right palm.

(iii) One bruise 2 1/2' x 1/2' on right forearm.

(iv) One incised wound 1 1/4' x 1/4' x skin deep on right side of scale.

(v) One bruise 3'x 1/2' on left forearm near elbow along with dislocation of left elbow joint.

(vi ) One bruise 2 1/2' x 1/2' on lower part of right thigh.

(vii) One bruise 4' x 1/2' on right leg.

(viii) One bruise 3 1/2' x 1/2' on left knee.

(ix) One bruise 2 1/2'x 1/2' on left leg.

(x) One bruise 4' x 1/2' on lower cart of left side back.

He has opined that injury Nos. (i), (ii), (iii). (vi), (vii). (viii), (ix) and (x) were simple in nature caused by hard blunt substance and injury No. (iv) was simple caused by sharp cutting weapon and injury No. (v) was grievous in nature caused by hard blunt substance. He has further opined that the age of the injuries was within 24 hours.

22. The doctor had also examined respondent Shrinath Khaware on that date at 7.15 P.M. and found the following injuries on his person:

(i) One lacerated wound 1/2' x 1/4' x skin deep along palmous surface of left thumb.

(ii) One bruise 1/2' x 1/2' on left index finger with dislocation.

(iii) One bruise 1' x 1/2' on right forearm.

(iv) One scratch 1/4' x 1/4' on root of right index finger.

(v) One scratch 1/3' x 1/4' just below right eve.

(vi) One scratch 1/4' x 1/4' on bridge of nose.

(vii) One bruise 4'x 1/2' on left side of chest.

(viii) One bruise 2' x 1/2' on left shoulder.

(ix) One bruise 4' x 1/2' on lower part of left side back.

(x) One bruise 4'x 1/2' on upper part of left side back.

(xi) Two bruises 3'x 1/2' each on right side of back.

He has opined that all the injuries were simple caused by hard blunt substance except injury No. (ii) which was grievous in nature and that the age of the injuries was within 24 hours from the time of examination.

23. The evidence of the doctor, hence, also shows that respondents Bishwanath Khaware, Shrinath Khaware and Paras Nath Khaware had also received injuries caused by hard blunt substance and sharp cutting weapons. His evidence also shows that he had examined these respondents on 13.6.2002 in between 6.45 P.M. and 7.45 P.M. and the age of the injuries was within 24 hours. Therefore, the injuries correspond to the time of occurrence mentioned in the Fardbeyan (Ext. B) of the case lodged by the respondents.

24. Thus from the evidence of the two doctors, it is proved that Diwakar Khaware, son of the informant, was murdered and the informant had received injuries on the alleged date at about the alleged time of occurrence.

25. The main question to determine, however, is that whether the murder had taken place in the manner as alleged and the learned trial court was justified in acquitting the respondents.

26. At this stage it may be mentioned that in appeal against acquittal, the approach of the appellate court should be different from that of an appeal against conviction. The general principles of presumption of innocence of the accused and the benefit of reasonable doubt given by the trial court to the accused should be kept in mind. The High Court should not interfere only because it feels that sitting in a trial court, it would have preferred conviction. Unless the order of the trial court is unreasonable and perverse, the order of acquittal is not liable to be interfered with.

27. Now. as already mentioned, the learned trial court has relied mainly upon the following circumstances in acquitting the respondents:

(i) the genesis of the occurrence has not been proved.

(ii) the I.O. of the case has not been examined and, therefore, the place of occurrence has not been proved.

(iii) The injuries on the accused have not been explained and the real story has been suppressed.

(iv) No independent witness has been examined to support the prosecution case.

28. In order to bring home the charges against the respondents, the prosecution has examined four eye witnesses. They are P.Ws. 1.2. 3 and 4.

29. P.W. 1 Narendra Nath Khaware has stated that on 13.6.1982 at 6.00 a.m., he was getting his maize field weeded out along with his son Diwakar Khaware by the labourers when respondents Paras Nath Khaware. Bishwanath Khaware and Shrinath Khaware came and abused the labourers. His son protested and on this, these respondents started throwing brick bats on them. The villagers intervened and separated them. They continued to do the work. He has further stated that on that very date at 10.00 a.m. he saw a mob of 15-16 persons armed with lethal weapons came towards them. They fled from there and hid themselves in the house of Ramdhani Jha. He identified the respondents Paras Nath Khaware armed with Garasa, Bishwanath Khaware armed with Bhala. Shrinath Khaware armed with lathi, Mihir Jha armed with Pharsa, Digvijay Jha armed with Pharsa, Saroj Jha armed with Tangi. Uday Jha armed with Tangi in the mob. All of them entered into the house of Ramdhani Jha and respondent Mihir Jha, Digvijay Jha, Uday Jha and Saroj Jha after breaking the bolt of the western room, brought him and his son in the Angan (courtyard) and they started assaulting them with their respective weapons. He has then stated that respondent Mihir Jha gave a Pharsa blow on the head of his son respondent Digvijay Jha assaulted him on head with Pharsa, Paras Nath Khaware assaulted him with Garasa on shoulder, Saroj Jha and Uday Jha assaulted his son with Tangi and Shrinath assaulted him with lathi and that when he went to save his son. he was assaulted by Mihir Jha with Pharsa on head and he fell down. Bishwanath Khaware pierced a bhala blow in the abdomen of his son. His son fell down and died. The evidence of this witness further is that the A.S.I. soon came and recorded his Fardbeyan.

30. P.W.2 has stated that on the alleged date at about 10.00 a.m. he had gone to purchase potato at village Bagbari at the house of Basant Kumar Jha when he saw that two tractors loaded with persons numbering about 15-16 came to the orchard. In the meantime, he saw Nunu Babu (informant) and his son Diwakar Khaware rushing and entering inside the house of Ramdhani Jha and subsequently the persons who had come on the tractor also entered the house of Ramdhani Jha and out of them he identified three persons viz. respondent Paras Nath Khaware. Bishwanath Khaware and Shrinath Khaware. Shrinath was armed with lathi. Bishwanath was armed with bhala and Paras Nath was armed with Kulhari. His evidence further is that thereafter he saw those persons retreating and then the villagers assembled and he along with the villagers went inside the house and saw Diwakar Khaware dead. He saw the injuries on the person of the deceased and also of the informant.

31. P.W. 3 Amar Nath Khaware has stated that on 13.6.1982 at about 7.00 a.m. he was sitting on the platform of his well and his labourers were working in the maize field. His father and brother were standing there. In the meantime. Paras Nath Khaware, Bishwanath and Shrinath came and started abusing and pelting brick bats and the labourers fled away. They protested when the respondents abused them also. In the meantime, the villagers reached and intervened and the respondents went away. He has further stated that after some time the above respondents along with 10-12 persons came on Trekker and kept the Trekker in the orchard and rushed towards them. He identified besides the above named three respondents, respondents Mihir Jha, Digvijay Jha, Uday Jha and Saroj Jha. They were armed with lathi, bhala, Garasa, Tangi and Pharsa. His father and brother Diwakar, seeing them, went inside the house of Ramdhani Jha. The mob also entered the house of Ramdhani Jha. He (P.W.3) also followed them and after sometime he climbed on the wall of the house and saw that the above named seven persons had surrounded his father and brother Diwakar Khaware and were assaulting them. Respondent Paras Nath Khaware assaulted his brother with Garasa on back. Bishwanath assaulted him with bhala on abdomen and Mihir Jha assaulted his father with Pharsa on head. Both the injured fell down and then the respondents fled away. Then he went inside the house and saw his brother dead and father injured.

32. P.W. 4 Shashi Nath Khaware has stated that on the alleged date at about 10.00 a.m. he was returning from Deoghar when he saw that two trekkers stopped in front of his house. There were 15-20 persons armed with weapons in their hands. He identified respondent Paras Nath Khaware, Bishwanath Khaware, Shri Nath Khaware, Digvijay Jha, Mihir Jha, Saroj Jha and Uday Jha among them. He has further stated that seeing them his father and brother Diwakar Khaware entered the house of Ramdhani Jha and the respondents followed them. He (P.W.4) also went there. He saw that Bishwanath gave bhala blow on the abdomen of his brother. Shrinath assaulted him with lathi on back, Uday Jha gave a Tangi blow on his head and that respondent Mihir Jha assaulted his father on his head with Pharsa. His brother died and the respondents fled away.

33. Thus, it appears that the above eve witnesses have supported the prosecution case.

34. Among these witnesses, P.W. 2 belongs to a different village and had gone to the P.O. village to purchase potato. He is, thus, a chance witness. The evidence of P.W. 7, part I.O. also shows that he was examined on 17.2.1983 i.e. after eight months of the occurrence. The learned trial court in view of these facts has disbelieved the testimony of the witness.

35. It may be mentioned that if a chance witness is an independent witness, his evidence should not be discarded if it is otherwise trustworthy. In this case though the witness is a chance witness, he appears to be an independent witness. There is nothing to show that he is either interested in the prosecution or inimical to the respondents. But he was not named in the Fardbeyan. He was also examined by the I.O. after eight months of the occurrence and no explanation has been given as to why he was not examined earlier. His evidence also shows that a son of the informant is a lawyer and he had taken this witness before the police for his statement. Therefore, it cannot be ruled out that the witness is a tutored one. I, therefore, also find that the testimony of this witness should not be relied upon.

36. As regards P.Ws. 3 and 4. both of them are sons of the informant. But though the informant has named many witnesses in the Fardbeyan as persons present at the P.O. he has not named them either in the Fardbeyan or in his evidence. Their statements were also recorded by the I.O. on 17.2.1983 i.e. after eight months of the occurrence and no explanation has been given by the prosecution regarding their non examination also for such a long time. The learned Sessions Judge on these grounds has disbelieved the evidence of these two witnesses.

37. Learned A.P.P. has submitted that these two witnesses are accused in the counter case filed by the respondents and they were absconding and as such they could not be examined earlier by the I.O.

38. These two witnesses being the sons of the informant are interested witnesses. P.W. 3 has stated that he had given statement before the I.O. on the date of occurrence but in the evidence of P.W.7 it is clearly mentioned that this witness and P.W.4 were examined on 17.2.1983 for the first time. No explanation has been given by the prosecution as to why they were not examined earlier. He (P.W.3) is also not named in the Fardbeyan.

P.W. 4 is also not named in the Fardbeyan. He stated that he had gone to his injured brother and he was present at the P.O. when the I.O. came, but he has admitted that he did not give any statement before the I.O. at that time and gave his statement after six months of the occurrence. There is no evidence on record to show that as these two witnesses were absconding and so, their statements could not be recorded earlier.

39. It may be mentioned here that the lower court record shows that the informant on 21.7.1982 had filed a protest petition before the Additional Chief Judicial Magistrate alleging therein that the A.S.I. (first I.O.) had been gained over by the accused and was not recording the statements of the witnesses properly and had been acting in a manner so as to damage the prosecution case. In that petition he has named his son Amar Nath Khaware as a witness but the informant (P.W. 1). as already mentioned has not named Amar Nath Khaware (P.W.3) as a witness in the Fardbeyan. So, in spite of the protest petition it cannot be said that the A.S.I. deliberately did not record the statement of Amar Nath or P.Ws. 2 and 4.

40. Therefore, as those two witnesses, namely. P.Ws. 3 and 4 are interested witnesses and also accused in the counter case filed by the respondents and they are not named in the Fardbeyan and were examined by the I.O. after about eight months of the occurrence and there is no explanation for their non examination for such a long time. I agree with the learned Sessions Judge that the testimony of these witnesses do not deserve credence.

41. Hence, there remains the evidence of only P.W.1 (informant). The Fardbeyan (Ext. 4) shows that it corroborates the testimony of P.W. 1 in material particulars. The evidence of the doctor (P.W. 6) also shows that he had received injuries at the time of the alleged occurrence. So, he also appears to be a competent witness. His evidence also finds corroboration from the evidence of the doctor (P.W. 8) who had conducted the post mortem examination on the dead body of the deceased.

42. But. though P.W. 1 has supported the prosecution case and he is a competent witness, he is also an interested witness being the informant. The Fardbeyan (Ext. B) of the case filed by respondent Paras Nath Khaware also shows that he is an accused in that case: and no independent witness has come to support his case. According to the Fardbeyan (Ext. 41 Ramdhani Jha in whose house the occurrence is said to have taken place. Basant Kumar, Jha. Surendra Jha and Sachidanand Jha of the P.O. village had come and saved the informant, but none of the witnesses except Surendra Jha (P.W. 5) has been examined but he has also not stated anything about the alleged occurrence. The evidence of P.W. 1 is that Ramdhani Jha. Savitri Devi and Renu Devi have been won over by the respondents. but no explanation has been given as to why Basant Kumar Jha, Sachidanand Jha were not examined. P.W. 5 has also stated that he was not in the village on the alleged date of murder and he has not been declared hostile.

43. As regards the genesis of occurrence, the evidence of P.W.1 is that on the date of occurrence at about 6.0 A.M. he was getting his maize field weeded out by the labourers along with his son. When respondents Paras Nath Khaware. Bishwanath Khaware and Shrinath Khaware came and protested and pelted brick bats and then the villagers came and intervened and the respondents went away and thereafter they came along with other accused persons and committed the murder. But no other witness has come to support him. P.W. 3. a son of the informant of course has tried to support this. But, as already pointed out his evidence cannot be relied Upon. The labourers were the most important witnesses on this point. The evidence of P.W. 1 is that Suresh Pandit and his sister were working in the maize field. But none of them has been examined. The I.O. has also not been examined to prove that there was any sign of weeding out of the maize field or there was any brick bat there. So, on the solitary evidence of P.W. 1 it is difficult to believe that any incident, as alleged, which ultimately led to the alleged murder had taken place. I, thus, agree with the learned trial court that the genesis of the occurrence has not been proved in this case.

44. Then. in this case, the first I.O. who had visited the P.O. has not been examined. Of course, non examination of the I.O. is not always fatal for the prosecution case. But in this case the evidence of the doctor (P.W. 6) shows that respondents Bishwanath Khaware, Parasnath Khaware and Shrinath Khaware had received a number of injuries each including grievous injury and Ext. B shows that respondent Paras Nath had lodged a case on the same date which was registered as Katoria P.S. Case No. 80/82 under Sections 147, 148, 149 and 307 of the Indian Penal Code, against the informant, his son Diwakar Khaware (deceased) and others alleging that they assaulted those respondents being armed with lathi, bhala, Pharsa on 13.6.1982 at about 7-8 a.m. (only about two hours before the alleged occurrence of the case) when they were sowing maize in his field. Therefore, the evidence of the I.O. was important in this case to Drove where actually the occurrence in question had taken place; and in absence of the evidence of the I.O. on this point, a prejudice has been caused to the respondents. Learned A.P.P. has submitted that the protest petition filed against the I.O. would show that the I.O. has been won over and for this reason he did not deliberately attend the court. But from mere filing of the protest petition, it cannot be said that the I.O. has been won over. Nothing substantial has been pointed out by the learned A.P.P. to show that actually the I.O. was won over; and even if he has been won over the fact remains that he (I.O.) has not been examined and his objective finding as to where actually the occurrence had taken place is wanting in the case. The prosecution has proved a paragraph (Ext. 7) of the case diary to show that the dead body of the deceased was found by the I.O. at the house of Ramdhani Jha but the learned trial court has rightly observed that in absence of the I.O., on the basis of that entry, it cannot be said that actually the dead body was found there. Besides this, mere presence of the dead body without any mark of violence is not enouqh in this case, to hold on the evidence of only P.W. 1 that actually the occurrence had taken place in the house of Ramdhani Jha.

45. Therefore, when the genesis of the occurrence has not been proved and the respondents had received injuries near about the time of the alleged occurrence for which they have filed a case against the informant party including the deceased, and as the P.O. in two cases as per F.I.Rs. are different, and the I.O. has not been examined to prove that actually the occurrence concerning the death of the deceased took place at the alleged P.O. and no reliable witness has been examined to corroborate the testimony of the informant that the occurrence took place at the alleged place in the alleged manner, if under such facts and circumstances, the learned trial court has acquitted the respondents. I do think that the view taken by the trial court is unreasonable or perverse requiring any interference of this Court in appeal.

46. In the result, this appeal is dismissed.

Chandramauli Kumar Prasad, J.

47. I agree.