IMPORTANT POINT
If the acquittal is justified on a probable view taken by the trial court, it should not be interfered with.

JUDGMENT

L. NAGESWARA RAO, J.

1. In these Appeals, we are concerned with the correctness of the judgment of the High Court of Judicature at Patna by which the judgment of the trial court was set aside and the acquittal of the Appellants was reversed. The High Court convicted the Appellants under Section 302 read with Sections 34 and 148 of the Indian Penal Code, 1860 (“the IPC”) and sentenced them to undergo life imprisonment.

2. We are informed that the Appellant Nos. 1, 2 and 4 died during the pendency of these Appeals and so, the Appeals filed by them abate. On the statement of the informant Md. Abu Daud (PW-6), the fardbeyan was recorded by the Officer Incharge of Matihani Police Station at 9.00 p.m. on 05.01.1984. He stated that along with his brother Md. Nadir Sah @ Jumma (deceased), he had gone to the house of Md. Mobin (PW-4) for collecting irrigation dues. They were basking by the ghura (fire place) at Md. Mobin’s darwaza. A mob of 10-11 persons armed with pistols, rifles and gun came there at that time. The informant identified seven out of eleven persons. Md. Chamru @ Sahadat was armed with gun, Noor Alam with rifle, Md. Jam Alam (Appellant No.4) with gun and Md. Kari @ Akhtar (Appellant No.1), Md. Samad and Md. Sanjat (Appellant No.3) also had fire arms. Immediately after the mob reached, the accused Md. Chamru@ Sahadat warned that nobody should try to escape and then Md. Sanjat (Appellant No.3) fired one shot which did not hit anybody. The informant, Md. Nadir Sah @ Jumma (deceased) and Md. Mobin (PW-4) started running and all the accused chased them. The informant hid himself by the side of a Simal tree from where he saw his brother Md. Nadir Sah @ Jumma (deceased) being surrounded by the accused near the southern wall of the house of one Samshul. After being surrounded, the deceased Md. Nadir Sah @Jumma was shot dead by Md. Chamru @ Sahadat, Md. Jan Alam and Noor Alam. The accused fled towards the village and soon after the informant and Md. Mobin rushed to where the deceased was lying and found that he was hit by the bullets. They started shouting for help. Md. Adil, Md. Ataul Rehman and several others came. They were informed about the incident by the informant.

3. On completion of the investigation, a charge sheet was filed under Sections 148 and 302 read with Section 149 IPC against seven persons out of whom one of the accused Md. Samad died and Md. Chamru @ Sahadat and Noor Alam absconded. The remaining accused i.e. the Appellants-herein faced trial for the charges framed under Sections 148 and 302 read with Section 149 IPC. According to PW-9 Bishram Das, who was the investigating officer, the information was received at 7.45 p.m. on 05.01.1984 that 2-3 shots were hurled and one person killed in Saidpur village. After recording S.D. Entry No.65, he proceeded to the Saidpur village along with other policemen. After reaching the place of the incident, he recorded the statement of Md. Abu Daud and prepared an inquest report. He also seized the blood soaked soil, ash of ghura and a lantern.

4. Post-mortem examination of deceased Jumma was conducted by PW-5 at 8.00 a.m. on 06.01.1984 who found the following injuries on the person of the deceased Md. Nadir Sah @ Jumma :

“(i) Deep wound with irregular burnt margin, size x 2” x 2” over the right cheek with surrounding areas with black stained with comminuted fracture on the right side mandible and maxilla and there was laceration of the surrounding tissues of the tongue. Multiple pillets and cork were recovered which were preserved and sealed.

(ii) Penetrating wound ½” diameter with burnt and inverted margin over the right coastal cartilage middle of the right nipple caused fracture of the cartilage. On further deep dissection the right lunge was found penetrated. There was also blood in the left side of chest cavity. There was also penetration of lower lobe of the left lung. There was hole in the heart. There was fracture of the ninth rib. There was wound on the bac