Criminal Appeal (SJ) No.325 of 1994 [Appeal against the judgment and order dated 21.9.1994 passed by the 12th Additional Sessions Judge, Patna in Sessions Trial No.227 of 1990] 1. Birendra Singh son of Rajendra Pd. Singh 2. Kamlesh Sharma 3. Kulesh Sharma, both sons of Jineshwar Singh, All residents of Village Abupur, P.S. Phulwarisharif, District Patna …………………….. Appellants Versus The State of Bihar ………….. Respondent For the Appellants : Mr. Krishna Pd. Singh, Senior Advocate Mr. Arun, Advocate For the Respondent : Mr. Abhimanyu Sharma, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant no.1 has been convicted u/s.326, 429 I.P.C. and 27 of the Arms Act and sentenced to R.I. for four years, two years and three years respectively, whereas the appellant no.2 has been convicted u/s.326/109 and 323 I.P.C. and sentenced to four years and six months respectively and appellant no.3 has been convicted u/s.325 I.P.C. and sentenced to three years R.I. by a judgment dated 21.9.1994 passed by the 12th Additional Sessions Judge, Patna in Sessions Trial No.227 of 1990. 2. The case of the prosecution according to one Lailesh Sharma is that on 29.4.1989 at about 11 A.M. when he along with his brother-in-law Sanjay Sharma were sitting at his Darwaja, appellant nos.2 and 3 started altercating with P.W.6 over a petty matter. 2 3. During trial, the prosecution has examined eleven witnesses. Out of whom, P.W.8, P.W.9, P.W.10 and P.W.11 are the four doctors, out of whom P.W.11 is the doctor, who had examined the bullet injury in the transaction. P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 are the eye witnesses, whereas P.W.5 is a tendered witness and P.W.7 is the Investigating Officer. The defence on its behalf adduced P.W.8 as D.W.1 to bring on record the injury sustained by the appellant no.2 Kamlesh Sharma. The Investigating Officer (P.W.6) has stated in his evidence that after the present case was instituted he had instituted another case on the statement of Kamlesh Sharma, which was numbered as Phulwari P.S. case No.120 of 1989 and he had investigated both the cases simultaneously. 4. In view of such material evidence, there is no manner of doubt that in fact there was a counter version of the occurrence and even the Doctor has testified that Appellant No.2 had sustained an injury. Therefore there is no manner of doubt that the appellant no.2 had sustained injury in the same transaction. Now I have to examine as to whether the five material witnesses have explained the injuries sustained by the appellant no.2. One finds from their evidence that there is total denial of the injury sustained by the appellant no.2 and consequently no explanation for the same. This creates a doubt in the mind of the Court as to whether prosecution has brought the true version of the occurrence before the court. 5. It is well known that the court can not construct a third 3 case and it is to decide conclusively on the evidence adduced on behalf of the parties. Under the circumstances, I am of the opinion that the true version was suppressed by the Prosecution and therefore it has failed to prove its case beyond all reasonable doubt. 6. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants on 21.9.1994 by the 12th Additional Sessions Judge, Patna in Sessions Trial No.227 of 1990 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 7th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )