Criminal Appeal No.43 OF 1995 (S.J.) [Appeal against the judgment and order dated 23.3.1995 passed by the Additional Sessions Judge-I, Siwan in Sessions Trial No.68 of 1988] 1. DHRUB SHARMA @ DHRUB LOHAR, S/O BISHWANATH SHARMA 2. PANCHDEO SHARMA @ PANCHDEO LOHAR S/O RAJ MOHAN SHARMA 3. BABULAL SHARMA @ BABULAL LOHAR, S/O DHRUB SHARMA 4. NAGESHWAR SHARMA @ NAGESHWAR LOHAR, S/O BAIDYANATH SHARMA, ALL RESIDENTS OF VILLAGE FATEHPUR, P.S. DARAUNDHA, DISTRICT SIWAN …. (ACCUSED)……………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent For the Appellants : Mr. Ram Kishore Singh, Advocate Mr. Sushil Kumar, Advocate For the Respondent : Mr. Choubey Jawahar, 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/ss.324, 323 and 148 I.P.C. and sentenced to R.I. for one year, six months and one year respectively. Appellant no.2 has been convicted u/ss.324 and 148 I.P.C. and sentenced to R.I. for one year under each count. Appellant no.3 has been convicted u/ss.323 and 147 I.P.C. but considering his age at the time of occurrence he was given the benefit of Section 3 of the Probation of Offenders Act, whereas the appellant no.4 has been convicted u/ss.325, 323 and 147 I.P.C. and sentenced to R.I. for two years, six months and six months respectively by the Additional Sessions Judge-I, Siwan in Sessions Trial No.68 of 1988 by a - 2 - judgment dated 23.3.1995. The case of the prosecution is that on 25.12.1985 when the wife of the informant (P.W.8) went out to throw garbage on the land situated next to her dwelling house, an altercation arose between the wife of the appellant no.1 and herself and when she protested, the accused persons came to the place of the occurrence and variously assaulted the prosecution party. Initially, the charges were framed u/ss.307/149 I.P.C. but the appellants were acquitted of the charges and convicted as mentioned above. During trial the prosecution has examined eleven witnesses. Out of whom, P.W.8 is the wife of the informant, whereas P.w.7 is the informant himself. P.W.1 is on the factum of the occurrence, whereas P.W.2 and P.W.3 are injured witnesses. P.W.4 and P.W.5 are also on the factum of the occurrence. P.W.6 is a witness, who came after the occurrence. P.W.10 and P.W.11 are the doctors, who examined the injured. P.W.9 is the Investigating Officer. The defence of the appellants was that the manner of occurrence was not as stated by the prosecution, for which reason the First Information Report of the counter case was brought on record including the injury reports with regard to the injured accused. From the evidence of the witnesses, it is apparent that the witnesses have made a deliberate and conscious attempt to - 3 - conceal the fact of injuries of the accused and it appears that the prosecution has attempted to twist the case and save itself from the fact of their conviction in the counter case. Even while conceding that the injury on the some of the accused persons were grievous in nature. Once the court arrives at the conclusion that the prosecution has not brought the correct version of the occurrence before the court, it would be difficult to rely on the prosecution case. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants on 23.3.1995 passed by the Additional Sessions Judge-I, Siwan in Sessions Trial No.68 of 1988 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 26th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )