Criminal Appeal (S.J.) No. 42 of 1996. (Appeal against the Judgment and Order dated 31.1.1996 passed by the Additional Sessions Judge-II, Barh, in Sessions Trial No. 144 of 1990.) ------------ 1. JOGENDRA RAI 2. NARESH RAI BOTH SONS OF DURGA RAI 3. CHANDESHWAR RAI, SON OF PANNU RAI. 4. KISHORE RAI, SON OF PARMESHWAR RAI 5. PARMESHWAR RAI, SON OF PANNU RAI 6. BALAM RAI 7. PARICHHAN RAI BOTH SONS OF BHANGI RAI 8. PANNU RAI, SON OF TRIBHUBAN RAI 9. SURESH RAI, SON OF DURGA RAI ALL RESIDENTS OF VILLAGE MADHOPUR, P.S. BAKHTIARPUR, DISTT. PATNA. ------- APPELLANTS. Versus 1. THE STATE OF BIHAR 2. RAJA RAM SINGH, SON OF PAIRU SINGH, R/O VILLAGE MADHUPUR, P.S. BAKHTIARPUR, DISTT. PATNA. ------- RESPONDENT. ---------- For the Appellant : Mr. Upendra Prasad, Adv. For the State : Mr. Choubey Jawahar, A.P.P. ---------- P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellants have been convicted under Sections 148 and 323 of the Indian Penal Code but instead of substantive sentence, have been given benefit of Section 360 Cr. P.C. and directed to execute bond of Rs. 5,000/- with two sureties of the like amount for keeping peace and be of good behaviour for a period of one year by the Additional Sessions Judge-II, Barh, in Sessions Trial No. 144 of 1990. 2. The case of the prosecution in short is that one Raja Ram Singh gave a Fardbeyan on 29.12.1988 at about 8.40 P.M. stating therein Patna High Court CR. APP (SJ) No.42 of 1996 dt.21-07-2011 2 that when he was going to catch the train to go to Patna, since he was working as a Peon in the Anisabad Patna College, all the accused persons suddenly surrounded him and began to assault him with various weapons. Appellant Suresh Rai is said to have assaulted him with Garasa on his head whereas Chandeshwar Rai is said to have assaulted also with Garasa on his left palm cutting his bone. When the Informant fell down, Appellants Jogendra Rai and Balram Rai inflicted Saif blow on him but it did not hit him. Whereafter, Appellants Naresh Rai and Parmeshwar Rai assaulted him with lathi on the back, right hand, shoulder, stomach and thigh. Appellant Kishore Rai also assaulted the Informant with Bhala but it did not hit him as also Parichhit Rai tried to assault with Gupti but that also did not hit him. 3. The accused persons variously committed theft of his personal possession. The Appellants were charged for offence under Sections 307 and 379 of the Indian Penal Code but acquitted of the charges and sentenced as mentioned above. 4. During trial, the prosecution examined five witnesses and one Court witness to prove the injury report since the Investigating Officer did not turn up. PW-1 Raj Kumar Singh, PW-2 Nageshwar Yadav whereas PW-3 Jagdish Yadav and PW-4 Raja Ram Singh who is the Informant. PW-5 Jogendra Prasad is another eye witness. 5. On behalf of the defence, three documents were brought on record to demonstrate that in fact, there was a counter version of the occurrence and, therefore, the First Information Report and charge sheet of the said case was proved. 6. On going through the evidence of the witnesses, I find that even though they have succeeded in proving that the Appellants assaulted the Informant but I find that none of the witnesses had explained the counter case. Moreover, the place of occurrence has been Patna High Court CR. APP (SJ) No.42 of 1996 dt.21-07-2011 3 seriously disputed by the defence and in absence of the examination of the Investigating Officer, in my opinion grave prejudice has been caused to the accused. 7. In view of only ocular evidence of interested witnesses without any independent corroboration of the prosecution case and the non-explanation of the counter version, I am not inclined to sustain the conviction of the Appellants. 8. In view of such, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Trial No. 144 of 1990 by the Additional Sessions Judge-II, Barh, is hereby set aside. 9. The Appellants are discharged from the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 21st July, 2011. NAFR/S.ALI.