IN THE HIGH COURT OF JUDICATURE AT PATNA

SLA No.43 of 2012

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Payarelal Sah, S/o Kriti Sah, R/o Vill. Raniganj, Phulwariya, P.S. Chakiya,

District – East Champaran, Motihari

.... .... Appellant/s

Versus

1. The State of Bihar

2. Dhrub Sah, S/o Shambhu Sah

3. Shambhu Sah, S/o Bodhi Sah

Both R/o Vill. Raniganj, Phulwariya, P.S. Chakiya, District – East

Champaran, Motihari

.... .... Respondent/s

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CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH

ORAL ORDER

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18-12-2012

Heard learned counsel for the petitioner and

learned counsel for the opposite parties.

This application is filed against the Order and

Judgment of acquittal dated 30.10.2012 passed by the learned

Judicial Magistrate, Ist Class, Motihari, East Champaran in

Complaint Case No. 2096 of 2003 and Trial No. 511 of

2010/407 of 2012.

Complaint’s case, in brief, is that on the date of

Diwali when complainant was making arrangements for litting

lamps accused persons came, abused and assaulted by means of

slaps. Reason behind the same was the earlier case in which

accused persons were ordered to execute probation bond.

After trial, the same ended in acquittal, validity

of which has been questioned through filing his appeal.

Patna High Court SLA No.43 of 2012 (2) dt.18-12-2012

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Total evidence in favour of complainant is his

two witnesses, including himself. P.W.1 is Dudhnath Sahni and

P.W.2 Pyarelal Sah, complainant. Defence has also examined a

witness namely Sujeet Kumar to prove his innocence.

The grounds for disbelieving prosecution case as

observed by the trial Court are delay in filing the case, none

examination of neighbour, contradiction in between the

statement of witnesses and presence of P.W.1 at the place of

occurrence.

Incident is of 25.10.2003 and complaint is lodged

on 11.11.2003. This much has not been explained. P.W.2, in

para-4 of his statement, states that witnesses came and saved

complainant but name of witnesses is not in his memory. In

such circumstance, examination of P.W.1 a witness from

another village rightly has been doubted. He is resident of

Paithenia, three kilometer away from the place of occurrence

may not be a separate Tolla of same village. Distance has been

disclosed by P.W.1 himself in para-4 of his statement. His

presence has also rightly been doubted as the day was of Diwali

and timing was of litting lamps. Same is followed by the

circumstance that enmity was there in between the parties, an

earlier case filed on behalf of the complainant was decided

Patna High Court SLA No.43 of 2012 (2) dt.18-12-2012

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against accused persons. Certainly, some mistake has been

committed by the trial Court but not in acquitting the accused

persons, rather not directing to file a case for false prosecution.

With such observation, this application to grant

special leave to appeal is rejected.

Shail/-

(Mandhata Singh, J.)