Criminal Appeal (SJ) No.383 OF 1994 [Appeal against the judgment and order dated 29.11.1994 passed by the Additional Sessions Judge II, Buxar in Sessions Trial No.868 of 1989] 1. ASHOK GAUND, SON OF SUKHLAL GAUND, RESIDENT OF NAI BAZAR, POLICE STATION BUXAR, DISTRICT BUXAR 2. SUMESHWAR BARHAI, SON OF SRI BASAWAN BARHAI, RESIDENT OF NAI BAZAR, POLICE STATION BUXAR, DISTRICT BUXAR …………………….. Appellants Versus THE STATE OF BIHAR ---------------------- Respondent Criminal Appeal (SJ) No.5 of 1995 RAJENDRA LOHAR SON OF BHARAT LOHAR, RESIDENT OF NAI BAZAR, BUXAR, P.S. BUXAR, DISTRICT BUXAR ….. APPELLANT Versus THE STATE OF BIHAR ……… RESPONDENT --------- For the Appellants : Mrs. M. Chatterjee, Advocate Mr. Sunil Kr. Singh, Advocate For the Respondent : Mr. R.B. Roy Raman, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants have been convicted u/s. 304 (first part)I I.P.C. and sentenced to R.I. for ten years and in addition appellants of Criminal Appeal No.383 of 1994 have also been convicted u/s.323 I.P.C. and sentenced to R.I. for one year by a judgment dated 29.11.1994 passed by the Additional Sessions Judge II, Buxar in Sessions Trial No.868 of 1989. The prosecution case is that 22.3.1989 suddenly an altercation arose between the parties when the deceased attempted to put colour on appellant Rajendra Lohar and the - 2 - deceased was variously assaulted with fists and slaps, on account of which he later died. During trial, the prosecution has examined seven witnesses in all. Out of whom, P.W.1 is the informant, whereas P.W.2 and P.W.3 are corroborative witnesses. P.W.4 is the doctor, who held postmortem examination, whereas P.W.5 has been declared hostile and P.W.7 is the Investigating Officer. P.W.6 is the Inquest witness. It appears from the analysis of evidence that P.W.1, P.W.2 and P.W.3 are material witnesses but P.W.2 was not an eye witness to the occurrence, whereas P.W.3 gave no independent statement before the Investigating Officer as conceded by the Investigating Officer. Admittedly the three material witnesses are close relatives of the deceased and they appear to be chance witnesses. P.W.1 in his cross-examination at paragraph 11 has stated that the deceased was on inimical terms with appellant Ashok Gaund and all the three accused persons used to stay together being friends and, therefore, it does not stand to reason the deceased would attempt to put colour on appellant Rajendra Lohar while he was in company with the rest of the accused persons. Moreover, the doctor did not find any external injury on the abdomen of the deceased even though death was on account of rupture of the spleen. For the reasons enumerated above, I am inclined to given benefit of doubt to the appellants and set aside the - 3 - judgment of the Trial Court. In the result, both the appeals are allowed and the order of conviction and sentence passed against the appellants on 29.11.1994 passed by the Additional Sessions Judge II, Buxar in Sessions Trial No.868 of 1989 is set aside. The appellants are discharged from the liabilities of their respective bail bonds. Patna High Court Dated, 7th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )