IMPORTANT POINT
Appeal against acquittal cannot be dismissed cursorily and without exercising power u/s 385(2) CrPC.

JUDGMENT

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by the son of the deceased-Sheo Kumar Pati Tiwari against the final Order dated 21.04.2014 passed by the High Court of Judicature at Patna in Criminal Appeal(D.B.) No.1030 of 2013 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant herein under Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) against the acquittal of respondent Nos.2-5 of the charges under Sections 302/34, 201 and 307 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) vide judgment dated 17.09.2013 passed by the Ad-hoc Additional District & Sessions Judge-III, Siwan in Sessions Trial No.32 of 1993.

3) The prosecution case, in short, is that on 24.07.1991, after having dinner at 9.00 p.m., the informant-Uma Pati Tiwari along with his elder brother Ram Tapasya Pati Tiwari and nephew Sheo Kumar Pati Tiwari were talking with each other at the Bathan situated at Village Kashidat Diara District Siwan, Bihar. At that time, Ram Naresh Chaudhary with Gun, Sukhraj Mallah with Gun, Janardan Ahir with Lathi, Chandeshwar Kurmi with Gun, Anil Singh with Gun, Balinder Ahir with Lathi, Naga Bhar with Lathi and Dwarika Chaudhary with Lathi came there in group and attacked them. Janardan Ahir and Balinder Ahir hit on the right hand of the informant with lathi five times and Sukhraj Mallah fired gun shot on Ram Tapsya Pati Tiwari, the brother of the informant. Ram Naresh Chaudhary, Anil Singh and Sukhraj Mallah fired bullets from gun at Shiv Kumar Pati Tiwari. The informant and the people with him fell down being injured. Shiv Kumar Pati Tiwari died and the accused persons fled away with his dead body towards South. The informant had injuries on his right hand and back and Ram Tapsya Pati Tiwari had gun shot injury on his left eye, left ear and also at nose. The other villagers saw the incident.

4) The cause of the incident was that some days ago, the accused persons had cut and stolen away the barbed wire of the field of the informant upon which, they scolded the accused persons.

5) The informant stated that he had recognized the accused persons in moon light and torch light. The injured persons were admitted in Sadar Hospital, Siwan.

6) On 25.07.1991, at about 10.00 a.m., Mr. Mahender Pandey, Thana In-charge, after hearing about the incident, came in the Hospital and recorded the statement of the deceased’s father in his station diary at entry No. 393. Thereafter, sub-Inspector Mr. J.N. Prasad proceeded to inspect the scene of the crime, collected sample of blood stained earth etc. and recorded the statements of the witnesses. At 1.00 p.m. Mr. A.A. Khan-Sub-Inspector recorded the statement of the deceased’s uncle in the Hospital.

7) On the basis of the station diary entry No.393, Sub-Inspector Mr. J.N. Prasad registered FIR No.42/1991 dated 25.07.1991 was lodged against eight accused persons in Assaon Police Station. The accused persons were apprehended.

8) After investigation, charge-sheet No.32/91 was filed on 21.10.1991 against Ram Naresh Chaudhary, Balvinder Ahir, Anil Singh, Sukhraj Mallah, Chandreshwar Kurmi, Janardan Ahir, Naga Bhar and Dwarika Chaudhary.

9) Subsequently, a supplementary charge-sheet No.3 of 1992 was filed on 09.06.1992 against Anil Singh, Naga Bhar and Sukhraj Mallah, Chandreshwar Kurmi, Janardan Ahir and Dwarika Chaudhary.

10) After cognizance on 17.09.1992, the trial of three accused Sukhraj Mallah, Chandreshwar Ahir and Dwarika Chaudhary was separated. Thereafter the trial of Naga Bhar was also separated.

11) Thereafter, on the basis of original charge sheet, Sessions Trial No.32/93 and on the basis of the supplementary charge sheet Sessions Trial No.76/93 was lodged. Both the trials were tried together.

12) Charges were framed against the accused persons. Respondent Nos. 3 & 4 were charged with offences punishable under Sections 201/302/34 IPC. Respondent Nos. 2 & 5 were charged with the o