Inconsistencies in the evidence of prosecution witnesses and previous animosity can influence the court's decision and lead to acquittal.

JUDGMENT :

CHAKRADHARI SHARAN SINGH, J.

1. This appeal has been filed under Section 372 of the Code of Criminal Procedure putting to challenge the judgment and order dated 16.03.2019 passed in Sessions Trial No. 327 of 2016/146 of 2018, arising out of Pupari P.S. Case No. 174 of 2010 whereby the learned Additional Sessions Judge, Fast Track Court No. II, Sitamarhi has recorded acquittal of respondents No. 2 to 8 of charge of the offence punishable under Section 302/34 of the Indian Penal Code. The said Pupari P.S. Case No. 174 of 2010, was registered at the instance of the informant (PW-2). The police, upon investigation, had submitted its final report since no evidence could be collected during the course of investigation by the police. The police report under Section 173 of the Code of Criminal Procedure was submitted with the remark that though the case was true, there was no clue. Apparently, on the basis of a protest-cum-complaint petition filed by the informant, the charge against the respondents was framed and they were put on trial. During the course of trial, altogether eight witnesses were examined including the appellant, who was the informant, as PW-2. The PWs. 1, 4 and 5 claimed to be the eye witnesses of the occurrence.

2. Briefly narrated, it was the prosecution’s case, as disclosed in the protest-cum-complaint petition, that on 12.10.2010, when the deceased was resting after having taken meal, he received the call from one of his relatives Kuldeep Hathi of village Yadupatti, whereafter he had proceeded to Yadupatti in a cycle. The complainant further disclosed in the protest cum complaint petition that he learnt from Mahesh Kapar (PW-5), Hardeo Kapar (PW-4) and Sadhu Mahto (PW-1), that they had also met the deceased in the midway, and while they were proceeding in the same direction with the deceased, all the seven persons, named in the First Information Report, came riding in motorcycle, intercepted the deceased and killed him by firing gunshots.

3. It is evident from the impugned judgment of the trial court and the evidence of the witnesses, copies of which have been brought on record by the appellant that the prosecution witnesses 1, 4 and 5 claimed themselves to be the eye witnesses. The court below, however, noticed manifest inconsistency in the evidence of the said eye witnesses, which has been noted in the impugned judgment, which reads as under:

“From the evidence of these three prosecution witnesses (PWs. 1, 4 and 5) it is obvious that their evidence is contradictory to each other. PW-1 Sadhu Mahto has stated in his evidence that on the date of occurrence he had gone to village Choraut when Luchai Panjiyar (deceased) came to him and on his request he along with Mahesh Kapar (PW-5), Hardeo Kapar (PW-4) and the deceased proceeded for village Yadupatti and in the way the occurrence took place, whereas PW-5 Mahesh Kapar has stated in his evidence that on the date of occurrence when he was going from Choraut to Yadupati in the way he saw the deceased going ahead and PW-4 Hardeo Kapar has stated in his evidence that at the time of occurrence he was in Choraut Bazar and when he was going to village Yadupatti in the way the occurrence took place. Their evidence is not consistent if these three witnesses were accompanying the deceased together from Choraut to village Yadupatti and saw the occurrence allegedly committed by the accused persons in the way or they were going from village Choraut to Yadupatti separately and met the deceased in the way and saw the occurrence.”

4. The trial court has also noticed previous animosity, which could be the reason for false implication of the persons put on trial in paragraph 13, which reads as under:

“13. From the evidence of these three so called eye-witnesses (PWs. 1, 4 and 5) themselves it is manifest that they were on inimical term with the accused persons since before the alleged occurrence of this case. It has come in cross-examination of PW-1 Sadhu Mahto that murder of one