By Court

The petitioner who was the first informant in Dhanarua P.S. Case No.7 (8) 73 has the order of the First Additional Sessions Judge, Patna, acquitting the accused (Opposite party Nos. 1 to 5) of the charges levelled against them in the following circumstances.

2. The petitioner lodged a first information report against the opposite party alleging that on the 17th of August 1973. at about 10 A.M. while the petitioner's father was watching his maize crop situated towards the east of the village a she buffalo of opposite party no. 3 began to graze his maize crop. He, however, drove out the she buffalo. The daughter of opposite party no. 3 was tending the she buffalo. She is said to have reported an exaggerated version that the petitioner's father had abused and assaulted her on above account. It is said that on this report all the five members of the opposite party rushed to the maize field, variously armed surrounded the petitioner's father and brutally assaulted him with lathis who fell down on account of the assault and became unconscious. The petitioner's father later succumbed to his injuries ill the evening in the hospital.

3. The police, after investigation sent up the members of the opposite party to stand their trial under sections 147, 149 and 302 of the Indian Penal Code. The prosecution has cited eleven witnesses in the charge sheet. The learned Sub-divisional Judicial Magistrate, Patna, on receipt of the charge sheet committed the members of the opposite party to stand their trial in the court of Session under Section 302 of the Indian Penal Code by his order dated the 20th September, 1974. This case was then transferred to the court of the First Additional Sessions, Judge, Patna for disposal.

4. The learned Additional Sessions Judge on the 19th August, 1976 framed charges against the opposite party and ordered for is sue of summons to the prosecution witnesses fixing different dates for their appearance, namely, 16th, 17th, 18th, and 20th September, 1976. It is contended by the petitioner that summonses were not served upon the prosecution witnesses, and therefore, they did not turn up on the dates fixed for their evidence. On a perusal of the order sheet of the court below, it would appear that on the first date fixed for appearance of the prosecution witnesses, that is, 16th September 1976, out of the five accused only one was present. A petition was filed on behalf of the remaining four accused stating that train services were dislocated on account of heavy flood, and, therefore they could not attend the Court. Their prayer for representation through a lawyer was allowed on that date. The Additional Public Prosecutor also filed a petition for reissue of summons. No order was passed on this petition, and the matter was adjourned to the 17th September, 1976. On this adjourned date neither any of the prosecution witnesses nor any of the accused persons turned up and the plea advanced on their behalf for non appearance was again heavy flood. The case was then adjourned to the 20th September, 1976. On it is date again none of the accused persons turned up due to heavy floods and they were allowed to be represented through a lawyer. None of the prosecution witnesses also turned up. The application filed by the Additional Public Prosecutor on the 16th September, 1976, mentioned above for issue of fresh summons, was allowed this date, and summons were issued to the witnesses fixing 5th, 8th, 9th and 10th November, 1976 for appearance of the different witnesses. On the same date, on the request of the Additional Public Prosecutor, warrant of arrest was ordered to be issued against the non-official witnesses and summonses for the official witnesses.

5. On the 5th November, 1976 although the accused had appeared, none of the prosecution witnesses turned up, in spite of the fact that the Additional Public Prosecutor

had taken steps in pursuance of the earlier order against the witnesses. The learned Additional Ses