Criminal Appeal (SJ) No. 201 OF 1994 ******** Against the judgment and order of conviction dated 6.7.1994 passed in Sessions Trial No. 273 of 1987 by the learned 4th Additional Sessions Judge, Saran. ****** 1. SATYA NARAIN SINGH 2. HARI NARAIN SINGH BOTH S/O MAUZI SINGH R/O VILLAGE- BHATAURA, P.S.- TAREYA, DISTRICT-SARAN ……..….. Appellant Versus THE STATE OF BIHAR …..………. Respondent ************ CR. APP (SJ) No.221 oF 1994 KRISHNA DEO SINGH @ KISHUN DEO SINGH S/O LATE RUP NARAYAN SINGH OF BHATAURA, P.S.- TRAIYA, DISTRICT- SARAN ……..….. Appellant Versus THE STATE OF BIHAR …..………. Respondent **************** For the Appellant : M/S Arvind Kumar Adv. : Ashok Kr. Singh Adv. : Pandit Jee Pandey Ad. : Satyanand Shukla Adv. : V.K. Sinha, Adv. For the State : Mr. Chaubey Jawahar APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellants of Cr. App. No. 201/94 have been convicted under Section 307 and 341 I.P.C. and sentenced to rigorous imprisonment for 10 years whereas the appellant no.2 has been convicted under Section 307/34 I.P.C. as well as 341 and 379 I.P.C. and sentenced to rigorous imprisonment for 7 years and 1 year respectively and no separate sentence has been passed under Section 341 I.P.C. where as the appellant of Cr. App. No. 221/1994 has been convicted under Section 307, 341 I.P.C. and sentenced to 7 years rigorous imprisonment but no separate sentence under Section 341 I.P.C. by a judgment dated 6.7.1994 by the 4th Additional Sessions Judge, Saran in Sessions Trial No. 273 of 1987. 2. The case of the prosecution is that on 28.4.1982 the accused persons came to the shop of one Krishnadeo Singh and ask for betel on credit and on his refusal to do so, it led to an altercation and assault by appellant Satya Narain Singh with chhura blow on the left side of his chest. 3. The prosecution examined altogether 6 witnesses out of whom P.W.3 is the informant whereas P.W.1 and 2 are First Information Report named witnesses and P.W.4 and 6 are formal and P.W.5 is the doctor who conducted the radio logical test of the informant. 4. The submission of the appellants was that in fact the manner of occurrence was completely false and the informant had been assaulted by unknown persons when the injured was enjoying the dance recital in a drunken stage and misbehaving. 5. It appears that P.W.1, 2 and 3 did not appear as eye-witnesses during investigation but later on deposed as such and thus materially developed the prosecution case. Thus in effect P.W.3 is the sole witness on the factum of occurrence. 6. In the present case the initial Investigating officer has not been examined who alone would have been competent to pin point the exact place of occurrence from the objective occurrence to substantiate the prosecution case. In absence of the examination of the said Investigating Officer it is difficult to rely on the prosecution case in its entirety. 7. I n view of the discussion made above, the appeal is allowed and conviction and sentenced of the appellants passed by learned 4th Additional Sessions Judge, Saran in Sessions Trial No. 273 of 1987 is hereby set aside and the appellant is discharged from the liabilities of his bail bonds. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 1st April, 2011 NAFR/ Fahad.