Arvind Srivastava JUDGMENT
Dinesh Kumar Singh, J.
1. Heard Mrs. Shashi Bala Verma, learned counsel for the appellant-State and Ms. Surya Nilambari, Advocate, who was appointed as Amicus Curiae, to assist the Court.
2. The State of Bihar has challenged (DB)-40/1997 the judgment of acquittal dated 18th June of 1997 passed by the learned 2nd Additional Sessions Judge, Kaimur at Bhabua in Sessions Trial No. 553 of 1995/250 of 1996 arising out of Bhabua P.S. Case No. 152 of 1995, whereby respondent nos. 1 to 3 have been acquitted of the charges under Section 302/34 of the Indian Penal Code.
3. The prosecution case got initiated on the fardbeyan of Lala Kumhar (P.W. 5) recorded by D.N. Pathak (P.W.10), Officer-in-Charge of Sonhan Police Station on 21.06.1995 at 07: 45 A.M. at Sonhan P.S. itself is to the effect that on 20/21.06.1995, the informant and his father were sleeping adjacent South to the house where the cattle were used to be tied. The informant woke up on the alarm raised by his father and saw the accused Sheo Pujan Kumar armed with Bhalua, Ganpat Kumhar and Hiraman Kumhar armed with lathi, fleeing away near the cot of his father. The informant Lala Kumhar (P.W.5) ran towards his father and saw blood oozing out from his neck. Thereafter, he raised alarm on which his male and female family members came out but by that time, the father of the informant had died. Thereafter, the informant went to the house of Banshlochan Singh (P.W.4) at village Silauta and explained all the incident before him. Thereafter, the informant along with Banshlochan Singh (P.W.4) went to the Sonhan Police Station where fardbeyan was recorded.
4. Consequently, Bhabua P.S. Case No. 152 of 1995 was registered for the offence under Section 302/34 of the Indian Penal Code. On conclusion of investigation, charge-sheet was submitted under Section 302/34 of the Indian Penal Code against the respondent nos. 1 to 3. Consequently, cognizance was taken and the case was committed to the Court of Sessions for trial.
5. The prosecution in order to prove its case, examined eleven witnesses. Out of which, Hari Kumhar (P.W.1), Nandu Kumhar (P.W. 2) and Lala Kumhar (P.W.5) are sons of the deceased. P.W. 3 Shushila Devi, is wife of the deceased. P.W. 4 Banshlochan Singh accompanied the informant at the Police Station. P.W. 6 is Dr. Ranjit Kumar, who conducted the post mortem of the dead body. P.W. 7, Nandan Singh Yadav and P.W. 8 Navijan @ Rabijan have been declared hostile as they have stated in paragraph-1 of their evidence that their statements under Section 161 of the Cr.P.C. have never been recorded. P.W. 9, Suresh Kumar is a formal witness and has admitted that at the time of occurrence, he was in village Silauta. However, he subsequently, reached at the spot and saw the dead body of the deceased and noticed injury on the neck of the deceased. P.W. 10, Dewendra Nath Pathak, is the Investigating Officer. P.W. 11, Rama Kant Tiwary, is a formal witness, who has proved the First Information Report.
6. The Defence has not examined any witness.
7. It is not in dispute that there is no eye witness of the alleged occurrence or none of the witnesses has seen the actual assault. The case is basically been rough to be established on ........