D.K.SINHA, J. - (1.) THIS Cr. Revision Application is directed against the judgment of acquittal of the members of the O.P. Nos. 2 to 8 herein in Cr. Appeal No. 70 of 2008 recorded by the Sessions Judge, Hazaribagh on 10th July, 2008 by setting aside the judgment of their convictibn and order of sentence passed by Sri Prakash Jha, Judicial Magistrate, 1st Class, Hazaribagh in G.R. No. 2960 of 2002 on 3.5.2008 corresponding to T.R. No. 128 of 2008 for the charge under Sections 147/323/504/341 I. P.C.
(2.) THE prosecution against the O.P. Nos. 2 to 8 herein was launched on the basis of the Complaint Petition filed on behalf of the petitioner herein alleging inter alia that on 20.11.2002 at about 9.30 a.m. while he was engaged in making gold ornaments in his house the O.P. Nos. 2 to 8 entered into his house by breaking open forming an unlawful assembly and started abusing him. It was alleged against the O.P. No. 2 Lakhan Prasad that he attempted to strangulate the complainant whereas the O.P. No. 6 Niranjan Prasad attempted to assault him with "Farsa" but the complainant managed to escape. At the instigation of the accused Jaibeer Sonar, accused Manoj Kumar attempted on the witness Shyam Kishore with "Ballam" but he was rescued by another witness Nand Kishore who happened to be the brother of the complainant. In the meantime, the complainant/ informant's brothers, his mother, wife, sister, sister -in -law and wife of Nand Kishore screamed for help but all the accused assaulted his mother with Lathi as a result of which she sustained injuries. The overt act against the other accused Prabhat Kumar, Santosh Kumar and Sanjeet Kumar was attributed in the manner that they scattered household articles of the house of the complainant and that all the accused took away the ornaments from the possession of the complainant. The genesis of the occurence was land dispute and the members of the Opposite Party -accused wanted to grab his land and that they had been earlier held guilty by a court of law in a different case. Pursuant to the order recorded under Section 156(3) of the Code of Criminal Procedure the case was registered as Ramgarh P.S Case No. 441 of 2002 orj 4.12.2002 for the alleged offence under Sections 147/ 341/323/504 of the Indian Penal Code. Mr. P.P.N. Roy. learned Sr. Counsel appearing on behalf of the petitioner assailed the impugned order of acquittal passed by the Sessions Judge, Hazaribagh in Cr. Appeal No. 70 of 2008 recorded on 10th July, 2008 on the ground that the material part of the evidence of the eyewitnesses viz. P.W, 1 Bhuneshwar Prasad, P.W. 2 Deonandan Sonar, P.W. 3 Shyam Kishore Verma, P.W. 4 Nand Kishore Prasad, P.W. 5 Prakash Prasad Swamkar informant himself and P.W. 6 Irshad Ansar was overlooked and ignored while recording the order of acquittal though they had categorically and consistently stated that they had seen the occurrence with the involvement of the accused persons who assaulted the informant, his brother and mother and also used abusive language by breaking open the door of the house of the complainant/informant. They were further consistent that all the accused persons i.e. the O.P. Nos. 2 to 8 herein, after forming unlawful assembly, stormed the house of the complainant, assaulted the inmates and scattered household articles by taking law in their hands. The learned Sessions Judge further failed to take into consideration that on account of prevailing land dispute between the parties, there was genesis and cause for the accused persons who took the law in their hands and they were aggressors by entering in the personal life and property of the complainant and in view of such materials on record, acquittal of the accused persons would amount to miscarriage of justice and therefore, the judgment of acquittal recorded by the Sessions Judge Hazaribagh in Cr. Appeal No. 70 of 2008 may be set aside and accordingly appropriate order may be passed by remanding back the matter for fresh consideration.
(3.) ON the other hand learned Counsel appearing for the O.P. Nos. 2 to 8 Mr. Anil Kumar strongly controverted the contention of the Counsel for the petitioner and submitted that the judgment recorded in the appeal by the Sessions Judge is well discussed and it was not the case wherein clean acquittal was awarded to the accused persons, who are the O.P, Nos. 2 to 8 herein rather they were acquitted after benefit of doubt was given to, them as the learned Sessions Judge held that the prosecution case could not be proved beyond all probabilities. The Sessions Judge observed: '' "It appears that all the witnesses have given a different place of occurrence and manner of occurrence. The complainant stated that he was assaulted by tangi and Manoj assaulted his brother with Ballam but all the witnesses have stated that they were assaulted by fists and blows. Even the place of occurrence is not fixed. While the informant stated that he saw the occurrence while sitting on the well but other witnesses stated that they saw the occurrence outside of the house. Some of the witnesses have stated that the occurrence took place inside the house. There is vital contradictions about the place of occurrence, manner of occurrence. Thus, in my opinion the prosecution case has become doubtful and the prosecution has failed to prove the case beyond reasonable doubt. Accordingly, benefit of doubt is given to the appellants and they are acquitted from the charges levelled against them." ;