Criminal Appeal No.182 OF 1995 (S.J.) [Appeal against the judgment and order dated 6.9.1995 passed by the 1st Additional Sessions Judge, Samastipur in Sessions Trial No.110/104 of 1986/1989] 1. SUNDESHWAR RAI SON OF NANDIPAT RAI 2. DEVENDRA THAKUR SON OF PALTAN THAKUR 3. AWADHESH RAI SON OF DHANI CHAND RAI 4. MURARI RAI @ KRISHNA MURARI RAI SON OF SABRANGI RAI 5. RAMESH RAI SON OF DHANI CHAND RAI, RESIDENTS OF VILLAGE KALYANPUR, P.S. KALYANPUR, DISTRICT SAMASTIPUR ……………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent WITH Criminal Appeal No.207 of 1995 (S.J.) 1. RAM DAYAL RAI SON OF LATE RAGHUNANDAN RAI 2. MADAN RAI SON OF KONAI RAI 3. BHOLA RAI SON OF KONAI RAI, ALL RESIDENTS OF VILLAGE KALYANPUR CHOWK, P.S. KALYANPUR, DISTRICT SAMASTIPUR … APPELLANTS Versus THE STATE OF BIHAR ……… RESPONDENT --------- For the Appellants : Mrs. Mira Kumari, Advocate For the Respondent : Mrs. Indu Bala Pandey, Addl. P.P. Mr. A.M.P. Mehta, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants Bhola Rai, Ramesh Rai, Madan Rai and Ramdeyal Rai have been convicted u/ss.3147, 323, 342 and 307/149 I.P.C. and have been sentenced to a period of one year u/ss.147, 323 and 342 I.P.C. and three years u/s.307/149 I.P.C. The appellants Sundeshwar Rai, Awadhesh Rai, Murari Rai and - 2 - Devendra Thakur have been convicted u/ss.307, 342, 307/114 and 149 I.P.C. and have been sentenced to a period of one year u/s.342 I.P.C. and two years u/s.149 I.P.C. and seven years u/s.307/114 I.P.C. Appellants Sundeshwar Rai and Devendra Thakur have also been convicted u/s.326 I.P.C. and sentenced to R.I. for a period of five years as also u/ss.149 and 342 I.P.C. and sentenced to R.I. for two years and one year respectively by the 1st Additional Sessions Judge, Samastipur in Sessions Trial No.110/104 of 1986/1989 by a judgment dated 6.9.1995. The prosecution case is that in the morning of 16.2.1982 when the informant Durgesh Charan Prasad Kumar alias Pandav Kumar was going towards his mill, all the accused persons surrounded him and thereafter the appellant Sundeshwar Rai is said to have given a farsa blow on his head, which he tried to ward of with his right arm. Appellant Murari Rai is said to have given orders, upon which the appellant Sundeshwar Rai once again gave a farsa blow on the head and appellant Devendra Thakur assaulted him with farsa causing injuries to him. The rest of the accused persons assaulted him with the weapons held by them. The informant ran to save himself and in the mean while, the police party intervened, which fired in the air, on account of which the accused persons ran away. The defence of the appellants was that the informant and his hired henchmen had tried to take forcible possession of the disputed house situated north of Kalyanpur Chowk on the same day and in that process a crowd had assembled in favour of - 3 - the accused persons since the wife of appellant Sundeshwar Rai used to run a shop in the disputed house. The defence also brought a number of documents and witnesses in support of this version. During trial the prosecution has examined altogether twenty seven witnesses on its behalf. Out of whom, P.W.4, P.W.5, P.W.6, P.W.9, P.W.10, P.W.15, P.W.16, P.W.17, P.W.19, P.W.20, P.W.21, P.W.22, P.W.23, P.W.24, P.W.25, P.W.26 and P.W.27 are formal witnesses. P.W.12 is the informant while P.W.18 is his son. P.W.1, P.W.2, P.W.4 and P.W.7 have deposed as eye witnesses. P.W.13 is also on the factum of occurrence. P.W.3, P.W.11 and P.W.13 are the members of the police party, according to whom, they had fired in the air when they had seen a mob assaulting the informant, at which the mob had fled away. P.W.8 is the doctor, who examined the injured informant and found six injuries on his person, out of which injury no.1, 2 and 4 were caused by sharp cutting weapon, whereas injury no.3, 5 and 6 were caused by hard and blunt substance. He has stated that injury no.4 was grievous in nature. P.W.12 is the doctor, who stated that the informant had been hospitalized, whereas P.W.11 and P.W.14 are also on the same point. The defence has produced Exhibit C and D, which are the counter version of the occurrence instituted as Kalyanpur P.S. case No.29 of 1982. There are other documents to show that the series of proceedings including one u/s.107 Cr.P.C. was pending apart from the Title Suit. This amply proved that there was active - 4 - animosity between the parties. P.W.12, the informant, has admitted in his cross-examination that the appellant Sundeshwar Rai used to claim the house which was disputed thus supporting the defence version. Admittedly all the witnesses examined on behalf of the prosecution are interested and related inter se. The Investigating Officer has not been examined. From perusal of the evidence of the defence witnesses 3, 5, 8 and 12, one finds that the claim of the appellants was cogent that the house was being taken possession of by P.W.12, in course of which this occurrence had taken place. In view of such incriminating documents and the non-examination of any independent witness including the Investigating Officer, it is difficult to hold that the prosecution has discharged in its duty of proving the case beyond all reasonable doubt. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants on 6.9.1995 passed by the 1st Additional Sessions Judge, Samastipur in Sessions Trial No.110/104 of 1986/1989 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 28th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )