Hon'ble Judges/Coram:
Doraiswamy Raju and Dr. Arijit Pasayat

JUDGMENT

Arijit Pasayat, J.

1. Questioning legality of the judgment whereby Division Bench of Patna High Court directed acquittal of 9 respondents, this appeal has been filed by the informant. Originally there were 15 accused persons and 5 of them were acquitted by the trial Court. They were accused Nos. 9 to 13. The convicted accused persons filed appeals before the Patna High Court. Crl. Appeal No. 485/89 was filed by 9 accused persons, while Crl. Appeal No. 521/89 was filed by one accused.

2. Accusations which formed foundation for the prosecution case are as follows:-

For Nawal Kishore Jha (hereinafter referred to as 'the deceased'), 9.4.1980 was the last day in this earth. He allegedly suffered homicidal death at the hands of the accused persons. There was long-standing enmity between Rajendra Jha (A-6) and one Deo Chandra Jha and there were several rounds of litigations between them. Raj Kishore Jha (PW 15) was going with the deceased for a walk in their village towards the chowk. They found Bundev Jha (A-1), Bindeshwar Jha, Rajendra (A-6), Arjun Jha (A-2), Lallu Jha (A-3), Daya Nand Jha (A-7), Parmanand Jha (A-15), Arjun Jha (A-14), Gopal Jha (A-4), Madanand Jha (A-8) and others were armed with various weapons and came to the Darwaja of Deo Chandra Jha to loot his Khalihan. The deceased protested as to why they were doing so. Hearing the protestations, Daya Nand Jha (A-7) and Rajendra Jha (A-6) ordered Bundev Jha (A-1) to shoot down the deceased. Bundev Jha (A-1) fired at once from his gun. The pellets hit deceased on the forehead, front portion of the neck and chest and he fell down unconscious. Accused Daya Nand Jha (A-7) asked the other members of the mob to leave as a murder had been committed. Raj Kishore Jha informant with the help of Prem Chandra Jha and Kaushal Kishore Jha and others tried to take the deceased to the hospital for treatment but on the way he breathed his last. The informant, therefore, went to the police station to lodge the report. Investigation was undertaken and charge-sheet was placed on completion thereof. The accused persons took the plea as evident from the suggestions given to the PWs and examination under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.') that on 9.4.1980 at about 5.00 p.m. Sri Kant Jha, the informant along with Deo Chandra Jha, Nawal Kishore Jha and some other PWs and others formed a mob of 50-60 persons and were variously armed and they went to the house of Accused Daya Nand Jha. They asked him to withdraw the case instituted against some of them and started looting wheat and other articles. Many persons from the village assembled there and requested the members of the mob to stop, but they did not listen to them and started pelting stones upon the villagers. In retaliation the villagers also started pelting stones. Deo Chandra Jha who was armed with a gun opened fire. The villagers forced the members of the mob to retreat and while they were doing so, Deo Chandra Jha also retreated towards south-west while still firing. Members of the mob committed theft of valuables and one of the gun fires made by Deo Chandra Jha hit deceased which proved fatal. Total 20 witnesses were examined to further the prosecution version. Out of them Hardeo Jha, Chandra Shekhar Jha, Prem Chandra Jha, Bishwanath Jha, Govind Kumar Jha, Deo Chandra Jha (PWs. 1, 3, 6, 7, 8, and 12 respectively) claimed to be eye witnesses, in addition to the informant. To substantiate its stand the defence also examined 14 witnesses. After considering the evidence on record, the Trial Court found the accusations were not established against 5 persons. Accused-Bundev Jha (A-1) was convicted for offence punishable under Section