Criminal Appeal (SJ) No.295 OF 1994 [Appeal against the judgment and order dated 5.9.1994 passed by the 2nd Additional Sessions Judge, Siwan in Sessions Trial No.82 of 1988/ 19 of 1991] 1. JAMIL AHMAD @ JAMIL MIAN, SON OF SHAH MOHAMMAD MIAN 2. NOOR HASSAN ALIAS NOOR HASSAN MIAN, SON OF SK. MOHAMMAD MIAN, BOTH RESIDENT OF VILLAGE DUMRA, POLICE STATION JAMO BAZAR, DISTRICT SIWAN …………………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent For the Appellants : Mr. Raghav Prasad, 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: The appellant no.1 has been convicted u/s. 304 Part II I.P.C. and sentenced to R.I. for ten years, whereas the appellant no.2 has been convicted u/s.323 I.P.C. and sentenced to R.I. for one year by a judgment dated 5.9.1994 passed by the 2nd Additional Sessions Judge, Siwan in Sessions Trial No.82 of 1988/ 19 of 1991. The case of the prosecution is that on 22.7.1985 the informant (P.W.4) stated that when his father was going towards the field the accused persons surrounded him and variously assaulted the deceased, on account of which he died later. Initially the case was instituted u/ss.147, 324 and 323 I.P.C. but once the deceased died the case was converted to one u/s.302 and charge was also framed u/s.302/34 I.P.C. - 2 - However the appellants were acquitted of the charges and convicted as stated above. During trial the prosecution has examined five witnesses in all. Out of whom, P.W.1 is formal, P.W.3 is the doctor, who conducted the postmortem examination report, P.W.5 is the Investigating Officer, whereas P.W.2 and P.W.4 are the material witnesses. It appears that the earliest information, which had been given by way of a Sanha, has not been brought on record and the present First Information Report was unduly delayed and the First Information Report was sent to the Court after two days. It also appears that initially the case of the prosecution was a general assault by all the accused persons but during trial the two material witnesses developed the case and pin pointed the specific allegations against the appellant no.1. Admittedly there is land dispute between the parties and the defence had also proved a number of documents in regard to such enmity. The Investigating Officer did not find any blood at the place of occurrence nor were any papers with regard to the field shown to him. On going through the evidence of P.W.2 and P.W.4, I find that P.W.2 was not an eye witness to the actual assault and he had come to the place of occurrence after the assault. Moreover the two eye witnesses named in the First Information Report were not examined by the prosecution. In the result, this appeal is allowed and the order of - 3 - conviction and sentence passed against the appellants on 5.9.1994 by the 2nd Additional Sessions Judge, Siwan in Sessions Trial No.82 of 1988/ 19 of 1991 is set aside. Patna High Court Dated, 6th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )