Vipul M. Pancholi, J. – This appeal under Section 378(1) and (3) of the Code of Criminal Procedure has been preferred by the State against the judgment dated 22.12.1998 passed by the 2nd Additional Sessions Judge, Banka, in Sessions Trial No.40/97, whereby the three respondents herein have been acquitted of the charges levelled against them.

FACTUAL MATRIX:

2. Amarpur P.S. Case No. 33 of 1996 came to be registered on 13.02.1996 at 10.15 AM by the Sub-Inspector of Police, Amarpur P.S., against three named accused persons, respondents herein, under Section 302/34 of the IPC and Section 27 of the Arms Act, based on the fard-beyan of the informant, Chandeshwari Yadav (PW 5). The informant, in his fard-beyan, recorded in the premises of Sadar Hospital, Banka, has stated that his son, namely, Shankar Yadav (deceased) is the owner of a ‘Tata Maxi’ which is used to be plied by him on Amarpur to Banka Road. One Hardeo Mandal (respondent No. 1 herein) too used to ply a ‘Tata Maxi’ in the same route. It is further stated that on 12.02.1996 with regard to timing of plying of vehicles, Hardeo Mandal of village Makduma raised a dispute and threatened his son that he will get him lifted within 24 hours, which his son had told at the home. It is further stated in the fard-beyan that while, on 13.02.1996, at around 07:00 AM, he along with his son (deceased) was going to Makduma, in connection with some work Kanki Yadav, Arun Yadav of his village and brother-in-law of his son, namely, Tuntun Yadav, were also going, on the pitch road near Pasi-Yadav Tola, Hardeo Mandal, armed with country-made pistol, Mahesh Mandal, armed with pistol and Manoj Mandal armed with licensed gun had been waiting there, surrounded his son and Manoj Mandal opened one shot and said that whoever will come in the way will be shot. Out of fear, he, other persons of his village and the people grazing their cattle nearby stopped there. When his son cried for help, then he saw that, with an intention to kill his son Hardeo Mandal and Mahesh Mandal, both abusing his son, fired point blank in the left side of his neck. The informant heard sound of two gun shots. It is also stated in the fard-beyan that Mahesh Mandal also abusively said that he will not die with two bullets and made another fire, upon which his son fell down and all the three fled away. When the informant and others reached nears his son, his son told that Hardeo and Mahesh Mandal have shot him. His son was soaked with blood. Three bullet marks were there on the neck of his son with charring mark and as the shot his his neck, the bullet exited from the middle of his head and more blood was oozing out from there. The informant has stated that Kanikmi Yadav, Arun Yadav, Anirudh Yadav, Soti Yadav and Tuntun Yadav have seen the occurrence. Thereafter, the injured was brought to Hospital at Banka in a vehicle, but the Doctor told that the injured has died. The informant has stated that with pre-planning and with an intention to kill his son, he was waylaid and has been shot dead.

2.1. On completion of investigation, charge-sheet was submitted against the respondents herein before the concerned Magistrate Court and as the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the same to the Sessions Court under Section 209 of the Code, where the same was registered as Sessions Trial No. 40/97.

2.2. At the trial, the prosecution examined six witnesses and also produced documentary evidence. Thereafter, further statement of the accused was recorded under Section 313 of the Code and after completion of the trial, the Trial Court passed the impugned judgment and acquitted the accused of the charges framed against them against which the State has preferred the present appeal.

3. Heard Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor appearing on behalf of the appellant- State and Mr. Ranjan Kumar Jha, learned counsel appearing on behalf of the respondents-accused.

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