Criminal Appeal (SJ) No.108 of 1997 [Appeal against the judgment and order dated 4.4.1997 passed by the 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No.267 of 1988] 1. Shyam Narain Rai Son of Late Ganesh Rai 2. Lal Babu Rai 3. Awadhesh Rai, both sons of Shyam Narain Rai 4. Vijay Rai 5. Parmanand Rai, both sons of Rashik Lal Rai, all of Village Khirodharpur Naya Tola, P.O. Fatuha, P.S. Khushroopur, District Patna …………………….. Appellants Versus The State of Bihar ………….. Respondent For the Appellants : Mr. Arun Kumar Pandey, 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: All the appellants have been convicted u/s.148 I.P.C. and sentenced to R.I. for two years and only appellant Awadhesh has been convicted u/ss.25A and 27 of the Arms Act and sentenced to two and half years and a fine of Rs.1000/- and in default of which further imprisonment for one month S.I. but no separate sentence has been awarded u/s.25A of the Arms Act by a judgment dated 4.4.1997 passed by the 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No.267 of 1988. 2. The case of the prosecution according to the informant Ram Swarath Rai is that on the night of 27/28.3.1994 the accused persons variously armed were seen cutting Dhaniya crops of the informant. The miscreants were chased, in course of which Bhondu Rai and Awadhesh (appellant no.3) were 2 apprehended, from whose possession fire arms were recovered. The said Bhondu Rai absconded and, therefore, was not put on trial. 3. To substantiate the case of the prosecution it has examined ten witnesses. Out of whom, P.W.1, P.W.2, P.W.3 and P.W.5 are eye witnesses to the occurrence, whereas P.W.4 is a tendered witness. P.W.6 is the informant himself, whereas P.W.7 and P.W.8 are formal witnesses. P.W.9 is the Investigating Officer and P.W.10 is the Surgent Major, who had tested the arms. During trial P.W.1, P.W.2, P.W.3, P.W.5 and P.W.6 consistently stated that on the alleged date, time and place of occurrence while they were watching their own fields, the accused persons variously armed came there and appellant Awadhesh Rai fired from his gun, but they were chased, in course of which Awadhesh Rai and Bhondu Rai were apprehended with arms. They all stated that Ram Swarath Rai had planted the Dhaniya in his fields and denied the factum of the counter case. 4. From the evidence of the prosecution witnesses and from the trend of their cross examination and suggestion given by the defence, it is admitted fact that the appellant Awadhesh Rai was apprehended at the place of occurrence and he was brought to the Police Station and the articles were recovered from his possession. However, Exhibit D, which was the judgment, pronounced by the Judicial Magistrate, 1st class, Vaishali at Hajipur in the counter case, in which the informant was also an accused, was brought on record by the defence. Exhibits C, C/1 3 and C/2 reveal that the learned court had held that in fact the land in question was in possession of the accused persons and they were the rightful owners of the disputed land. The defence also exhibited Exhibit A which was a decree in Title Suit for declaration that the survey khatiyan in the name of the informant be declared wrong and illegal was decided in favour of the Appellants. Admittedly all these documents reveal that there was a dispute with regard to the land and under the circumstances the conviction of the appellants u/s.148 I.P.C. is against law. As for the recovery of arms from the person of the appellant Awadhesh Rai the same is also well explained and, therefore, his conviction under the said count is also set aside. 5. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants on 4.4.1997 passed by the 4th Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No.267 of 1988 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 12th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )