Criminal Appeal No.167 OF 1995 (S.J.) [Appeal against the judgment and order dated 7.7.1995 passed by the 4th Additional Sessions Judge, Saran (Chapra) in Sessions Trial No.320 of 1985/ 83 of 1987] 1. DEO PRASAD RAI 2. NEMU LAL RAI, BOTH SONS OF RAJESHWAR RAI @ MISHRI RAI 3. SUNIL RAI @ SUNIL KUMAR RAI, SON OF DEO PRASAD RAI 4. HARENDRA RAI, SON OF NEMU LAL RAI 5. SURESH RAI @ SURESH KUMAR RAI, SON OF NEMU LAL RAI, ALL RESIDENT OF VILLAGE BANGARI, P.S. GARKHA, DISTRICT SARAN(CHAPRA) ……………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent For the Appellants : Mr. Vikram Deo Singh, Advocate Mr. Dharmendra Kumar Singh, Advocate Mr. Sada Nand Roy, Advocate For the Respondent : Mr. Dinesh Singh, 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/ss.148, 324 I.P.C. and 27 of the Arms Act and sentenced to R.I. for one year, two years and three years with a fine of Rs.500/- and in default of which R.I. for one month and the appellant no.3 has been convicted u/ss.147 and 323 I.P.C. and appellant nos.4 and 5 have been convicted u/s.147 I.P.C., whereas the appellant no.2 has been convicted u/s.148 I.P.C. The appellant nos.2, 3, 4 and 5 have been released on Probation of Offenders Act on execution of bond of Rs.10,000/- with two sureties of the like amount each for a period of two years by a judgment dated 7.7.1995 passed by the 4th Additional Sessions Judge, Saran - 2 - (Chapra) in Sessions Trial No.320 of 1985/ 83 of 1987. The case of the prosecution is that on 7.9.1984 the accused persons assaulted the prosecution party on account of a dispute over plucking of maize Bal, due to which earlier an altercation had taken place between them. All the appellants were charged u/s.307/149 I.P.C., but were acquitted of the charges by the Trial Court after close of trial. During trial the prosecution has examined seven witnesses in all. Out of whom, P.W.1, P.W.2, P.W.3, P.W.5 and P.W.6 are eye witnesses. P.W.4 and P.W.7 are formal witnesses. It appears that the entire prosecution case rests on the oral evidence of the eye witnesses and neither the doctor nor the Investigating Officer has been examined to substantiate the charges. In absence of the doctor’s corroboration that indeed the injured persons had sustained injuries at the hands of the appellants in the manner described, it would be unsafe to convict the appellant no.1 u/s.324 I.P.C. Hence he is acquitted of the charges, whereas Section 27 of the Arms Act is concerned, since there is a definite allegation that the appellant no.1 had fired from the pistol, I am not inclined to interfere with the conviction of the appellant no.1 on this count. In view of the discussions above, the appeal of the appellants no.2, 3, 4 and 5 is allowed and the order of - 3 - conviction and sentence passed against them on 7.7.1995 passed by the 4th Additional Sessions Judge, Saran (Chapra) in Sessions Trial No.320 of 1985/ 83 of 1987 is set aside. The appellant nos.2, 3, 4 and 5 are discharged from the liability of their bail bonds. The appeal against the appellant no.1 is dismissed but modification in the period of sentence to one that has already been undergone by him during trial. However, the appellant no.1, if alive, be required to deposit the fine required by him before the Trial Court within a period of eight weeks from the date of receipt of the judgment and the same shall be paid to the victim Prabhawati Kumari/her family members. In the result, the appeal is allowed in part. Patna High Court Dated, 25th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )