Important point
When the view taken to direct acquittal was possible view merely because on evidence a different view was available to be taken, that could not be a ground to upset acquittal.­

Judgment

Arijit Pasayat, J.—This appeal has been filed by father of one Anup Goswami (hereinafter referred to as the ‘deceased’) who allegedly lost his life on 14.4.1991. The respondents 1 to 6 and four others were stated to be responsible, first for his abduction and thereafter his murder. The 4th Additional Sessions Judge, Dhanbad in S.T. No. 37/1993 found the respondents guilty for the offence punishable under Section 364 read with Section 149 of the Indian Penal Code, 1860 (in short the ‘IPC’) and under Section 302 read with Section 149 IPC.

2. One Madan Singh who was stated to be the kingpin in the whole incident died during trial. Similar is the case with one Jitu Mandan who died during trial. Ram Narain Singh, son of accused Madan has absconded, so also one Ashok Goswami who jumped bail and therefore the trial court did not record any findings so far as he is concerned.

3. The prosecution version in a nutshell is as follows:

One Ashok Kumar Giri gave his fardabeyan (Ext.8) to the police on 14.4.1991 at 11.05 p.m. near Agrasen Bhawan, Laxmaniya More in front of the house of accused Madan Singh alleging there that at about 9.00 p.m. the informant, Krishna Goswami (PW-5), Pradip Sharma and Bijay Giri (PW-4) along with Anup Goswami reached Laxmaniya More. The informant was gossiping with the persons named above and suddenly accused Madan Singh (A-1), Ram Narain Singh (A-2), Om Prakash Singh (A-3), Sheo Kumar Singh (A-4), Jan Bijoy Singh (A-5) (A-2 to A-5 being all sons of Madan Singh), Pappu Mali (A-6), Dilip Mali (A-7), Jitu Mandal (A-8), Ashok Goswami (A-9) and Shrikant Singh (A-10) armed with Bhujali, sword, pistol and bomb came and menacingly asked the informant and others to escape. The informant and others panicked. In the meanwhile accused Madan Singh and his four sons caught hold to Anup Goswami while A-4 pointed out a pistol towards him, and asked Anup Goswami to accompany them. When Anup Goswami protested, Madan Singh and other accused persons caught hold of hands and feet of Anup Goswami and dragged him to the lane by the side of Agrasen Bhawan. They were loudly telling that Anup Goswami shall be killed. The informant and other eyewitnesses tried to follow, but Jan Bijoy Singh (A-5) asked them not to follow, otherwise he would use his bomb. The informant, after some time went to the house of Madan Singh along with a Havildar of Bajbari T.O.P. House of Madan Singh was locked. When the informant tried to open the door, Madan Singh told him to go away. After some time, police came and when they entered the house of Madan Singh, found Anup Goswami whose both hands were chopped. Right hand was completely separated and left hand was connected only by the aid of skin. The informant found that Anup Goswami was already dead. While the informant and others were entering the house of Madan Singh at that very time, the accused persons fled away by the back door. Near the dead body of Anup Goswami, a country made pistol of 3.15 bore one sword, one broken hockey stick were lying. The motive behind alleged occurrence was that Anup Goswami was having enmity with Madan Singh and his sons. Investigation was undertaken. Charges were explained to the accused persons and they pleaded innocence.

4. Placing reliance on the evidence of alleged eyewitnesses PWs. 4, 5 and 9, the trial Court found the accused persons guilty and imposed imprisonment for life for the offence relatable to Section 302 read with Section 149 IPC, and 10 years RI for the offence relatable to Section 364 IPC read with Section 149 IPC. The respondents preferred appeal before the Patna High Court. The appeal was heard by two Hon’ble Judges. There was a difference of view between the two Hon’ble Judges. While Justice P.K. Deb held that prosecution has not established its accusations, a contrary view was taken by Justice R.N. Sahay, J. upheld the conviction of appellant under Section 302 read with Section 149. However, the conviction under Section 364 read with Sectio