ORDER :

1. This appeal at the instance of the State is directed against acquittal of the respondent Chhote @ Shardamani who was an accused in Sessions Trial No. 222/1994 wherein it was alleged that the present respondent/accused shared common intention with his brother co-accused Rajan @ Sarvjit to murder Bigan Minj (PW-13).

2. The learned trial Court relying upon the evidence of the eye witnesses held that co-accused Rajan was guilty of commission of offence under Section 307 IPC as he had fired gunshot on Bigan (PW-13) with intention to kill. As far as, present accused Chhote @ Shardamani is concerned, the learned trial Court acquitted him holding that even according to the evidence of the prosecution witnesses, this accused, though present at the spot, did not give any assault to PW-13 the victim. Aggrieved by the said judgment this appeal has been preferred.

3. Learned State counsel argued in extenso and submitted that in the present case the learned trial Court committed patent illegality and perversity in acquitting respondent/ accused by giving him benefit of doubt only on the ground that he did not open any assault on victim Bigan Minj (PW-13) or any of his associates but without taking into consideration evidence on record that when at the spot, victim (PW-13) was threatened to vacate the land, he refusing the vacate, respondent declared that these persons will not understand in this manner and asked co-accused Rajan to kill and only thereafter, the accused Rajan fired gunshot on victim (PW-13) with intention to cause death. He would argue that this has been so stated by Jeevan (PW-11), Jasita (PW-12) wife of victim (PW-13). On the face of such evidence, the acquittal of respondent is without consideration of most material evidence on record. Learned counsel for the State would highlight that the learned trial Court did not take into consideration this clinching evidence much less recording any reason to disbelieve the same. Therefore, it is argued, respondent was also liable for conviction under Section 307 IPC as the evidence proves that he shared common intention with his brother Rajan. Learned counsel for State would submit that the evidence on record overwhelming in nature is to the effect that initially Rajan came to the spot and asked Bigan (PW-13) to vacate the agricultural land which was refused and then Rajan went home and then came back with a gun in his hand along with his brother respondent Chhote @ Shardamani who was holding an axe in his hands. In this background the utterances made by respondent at the spot proves that he also shared common intention to kill the deceased and even if he did not open any assault with the help of axe which he was holding in his hands, his involvement is clearly proved.

4. On the other hand, learned counsel for respondent/accused would argue that the respondent/accused has been acquitted by the trial Court after minute scrutiny of the evidence of all the prosecution witnesses including Anil (PW-6), Jeevan (PW-11), Jasita (PW-12) and Bigan (PW-13) and now their evidence, as has been scrutinized by the trial Court, the allegation of criminal overt act was only against the co-accused Rajan and the only evidence against the present appellant that he declared at the spot and told co-accused to kill Bigan Minj (PW-13) is clear improvement upon the case diary statements of all those eye witnesses and even in the FIR this fact has not been stated by victim PW-13. Such an important omission in the FIR and case diary statement particularly with regard to allegation of Chhote @ Shardamani asking co-accused to kill coupled with no assault opened by the respondent/accused, renders possible the view which have been taken by the learned trial Court against respondent/accused and therefore, given the limited scope of interference against the judgment of acquittal, even if two views are possible, the view taken by the learned trial Court is not liable to be interfered with.

5. We have given our