Criminal Appeal (SJ) No.104 OF 1995 (Appeal against the Judgment and Order dated 29.6.1995 passed by the 1st Additional Sessions Judge, Saharsa, in Sessions Case No. 74 of 1989) 1. KAILASH YADAV 2. ROHIT YADAV BOTH SONS OF LATE MAHESHWARI YADAV 3. YOGENDRA YADAV, SON OF LATE TANUKLAL YADAV 4. BIPIN YADAV, SON OF BHUNESHWARI YADAV ALL RESIDENTS OF VILLAGE MOHANPUR, P.S. SALKHUA, DISTT. SAHARSA. ------ APPELLANTS Versus THE STATE OF BIHAR ------RESPONDENT For the Appellant : Mr. Madhav Prasad Yadav, Advocate. Mr. Shashidhar Jha, Advocate. For the State : Mr. Pronoti Singh, A.P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: Heard. The Appellants have been convicted under Sections 304 Part-II/34 of the Indian Penal Code and sentenced to seven years rigorous imprisonment by the 1st Additional Sessions Judge, Saharsa, in Sessions Case No. 74 of 1989 by a Judgment dated 29.6.1995. The prosecution case is that the Informant’s son was variously assaulted with lathi by the Appellants on 17.6.1987 on account of which he died in his house. Charge sheet was submitted only against the Appellant No. 1 but during trial the rest of the Appellants were summoned under Section 319 Cr. P.C. and charged under Section 302/34 of the Indian Penal 2 Code but sentenced under Section 304 Part-II/34 of the Indian Penal Code. The prosecution in all examined nine witnesses out of whom PW-5 is the Informant and father of the deceased. PW-2 and PW-3 are the eye witness of the occurrence whereas PW-4 is the brother of the deceased who was only on the factum of occurrence. PW-6 is the Doctor who held the post mortem examination whereas PW-7 who had given injury report of the injured deceased. PW-9 is a formal witness and PW-5 is the Investigating Officer. As per PW-6, the Doctor, who performed the post mortem on 21.6.1987 i.e. four days after the occurrence, two incised lacerated wound on right forearm of the deceased whereas one Haematoma on the back of the chest was found. Blood clots were present beneath the neck muscles in the neck and 2nd left rib was broken piercing the lungs and lacerating the left plura. He found the body decomposed with blisters showing evidently that the death had occurred much before the post mortem examination. Surprisingly, the Doctor (PW-7) who had initially examined the injured on 18.6.1987 had found only one injury on the lower arm with suspected fracture of radial bone and a swelling on the right ankle. The evidence of these witnesses completely contradicted each other. The defence examined two witnesses on their behalf and also accepted certain documents which showed that there was a land dispute between the parties and a proceeding under 3 Section 145 Cr. PC. was also pending between them. Surprisingly, even though the First Informant stated that he instituted the present case after the death of his son, the Investigating Officer (PW-8) stated that the injured deceased was brought to the Police Station and he had made station diary entry with regard to the same and sent him for treatment to the hospital whereafter the present case was instituted. Thus evidence of the Informant and the Investigating Officer materially differed from each other on the point as to when the First Information Report was instituted. The fact that the station diary entry has not been brought on record by the prosecution also, gives rise to a serious suspicion on the conduct of the prosecution in not bringing the earliest version of the occurrence on record. In view of the discussions above, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Case No. 74 of 1989 by the 1st Additional Sessions Judge, Saharsa, is hereby set aside. The Appellants are discharged from the liability of their bail bonds. Patna High Court, Patna Dated, the 18th April, 2011 NAFR/S.ALI ( Anjana Prakash, J.)