Criminal Appeal (SJ) No. 329 OF 1994 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Kamleshwar Rai, S/o Jharilal Rai. 2. Dinesh Rai, S/o Kamleshwar Rai. 3. Suresh Rai, S/o Asarfi Rai. 4. Rajdeo Rai, S/o Late Laxmi Rai. 5. Ramnand Rai, S/o Late Narayan Rai. All R/o Village-Mansurpur, P.S.-Sarai, District-Vaishali. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) With Criminal Appeal (SJ) No. 342 of 1994 Jai Kishun Rai, S/o Narayan Rai, R/o Village- Mansurpur, P.S.-Sarai, District-Vaishali. ..……...(Appellant) Versus THE STATE OF BIHAR……Respondent. ************* For the Appellants : Mr. Nachiketa Jha, Adv. : Mr. Ashutosh Kumar, Adv. For the State : Mr. Damodar Pd. Tiwari, APP. *************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. The appellants of Criminal Appeal No. 329 of 1994 have been convicted under Section 307/149 IPC and sentenced to RI for five years whereas the appellant of Criminal Appeal No. 342 of 1994 has been convicted under Section 307 IPC and sentenced to seven years RI and also under Section 27 of the Arms Act and sentenced to five years RI by the 4th Additional Sessions Judge, Vaishali at Hajipur by a judgment dated 22.09.1994 in S.Tr. No. 238 of 1989/125 of 1992. 2 The case of the prosecution according to the Informant P.W. 2 is that while he was going towards his fields the accused persons variously armed surrounded him and thereafter the appellant Jai Kishun Rai fired at him on account of which he was injured. The reason for the occurrence is that there was long standing enmity between the parties. During trial the prosecution examined five witnesses and filed several documents marked as Exhibits 1 to 6. The defence of the appellants was that the informant and others were committing theft of paddy on their fields and when they protested the prosecution party intended to assault them and when in course of fleeing a bomb was exploded by the prosecution on account of which the informant was injured. P.W. 1 who is the brother of the informant has given eye witness account that the appellant Jai Kishun Rai fired at P. W. 2 on the orders of appellant Ramanand Rai. However, he admitted that he was convicted and sentenced to life imprisonment in S.Tr. No. 33/83 in which appellant Ramanand Rai had deposed against him. He also admitted that a proceeding under Section 145 Cr.P.C. had been initiated between them. Some other criminal cases were also pending between the parties was admitted by him. P.W. 2 is the informant himself and he also admitted that 3 there was several litigations both civil and criminal between the parties which demonstrated that the parties were on inimical terms. P.W. 3 is the Doctor who examined the injured and concluded that the injury sustained by P.W. 2 was on account of explosive substance which corroborated the defence version. P.W. 4 and P.W. 5 are formal witnesses. The prosecution failed to examine the Investigating Officer who alone was competent to bring the objective evidence before the Court since there were rival versions of this occurrence. Moreso because, even the prosecution case, to some extent corroborated the counter version. Under the circumstances, it is difficult to accept the prosecution case as having been proved beyond all reasonable doubt. In view of such, the appeals are allowed and the judgment dated 22.09.1994 passed by the 4th Additional Sessions Judge, Vaishali at Hajipur in S.Tr. No. 238 of 1989/125 of 1992 is set aside. The appellants are discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 6th April, 2011. NAFR/Vikash/-