Criminal Appeal (SJ) No. 304 OF 1996 Appeal against the judgment and order dated 27.11.1996 passed by Shree Awadhesh Kumar Verma, 1st Additional Sessions Judge, Aurangabad in S.Tr. No. 121/87/54/91. ************ 1. Kameshwar Mistry, S/o Late Raghuni Mistry. 2. Bindheyachal Devi, W/o Kameshwar Mistry. Both are resident of Village-Ordih, P.S.-Kutumba, Distt.-Aurangabad. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) With Criminal Appeal (SJ) No. 306 of 1996 Jitendra Mistry, S/o Sri Kameshwar Mistry, resident of Village-Ordih, P.S.-Kutumba, District-Aurangabad. …………(Appellant) Versus THE STATE OF BIHAR ……….(Respondent) ************* For the Appellants : Mr. Krishna Pd. Singh, Sr. Adv. : Mr. Manish Kumar, Adv. For the State : Mr. S.N. Prasad, APP. : Mr. Ajay Mishra, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant Jitendra Mistry has been convicted under Section 304 Part-II IPC and sentenced to RI for ten years whereas the appellant Kameshwar Mistry has been convicted under Section 323 IPC and sentenced to RI for one year and the appellant Bindheyachal Devi has also been convicted under Section 323 IPC but she has been released on probation on executing bond of Rs. 10,000/- by the 1st Additional 2 Sessions Judge, Aurangabad in Sessions Trial No. 121/87/54/91 by a judgment dated 27.11.1996. 2. The case of the prosecution according to the informant is that on 23.04.1984 a dispute arose between the parties over drawing of water from a well which led to an assault on Baijnath Ram due to which he was injured and later died after one week. Initially the charge was framed under Section 323/34 IPC but the appellants were convicted as mentioned above. 3. During trial the prosecution in all examined fourteen witnesses out of whom P.W. 2 and P.W. 7 are formal witnesses. P.W. 10 and P.W. 11 are tendered witnesses. P.W. 1 is the Doctor who examined the injured person whereas P.W. 3, P.W. 4, P.W. 5 and P.W. 6, P.W. 8, P.W. 9, P.W. 10, P.W. 11 and P.W. 12 are the witnesses on the point of occurrence and P.W. 13 is the Investigating Officer and P.W. 14 who conducted the post-mortem of the deceased. 4. The defence of the accused was that in fact on account of the dispute between the parties an altercation arose which led to a free fight in which both the sides were injured. When the prosecution was given this suggestion they stoutly denied the same and, therefore, it appears that the prosecution has not been truthful in narration of the occurrence. Further even though P.W. 1 is said to have recorded dying declaration 3 of Baijnath Ram the deceased but there is no certificate in regard to the mental alertness of the deceased while giving the statement. This becomes important in view of the fact that in the fardbeyan itself it has been noted that the injured was in unconscious position and, therefore, the so-called dying declaration does not appear to be reliable. Further in the First Information Report there is a general allegation against all the accused persons of assaulting the deceased but during evidence the witnesses have confined their allegations against appellant, Jitendra Mistry which does not stand to credit the prosecution witnesses. 5. Under the circumstances, these appeals are allowed and the judgment dated 27.11.1996 passed by the 1st Additional Sessions Judge, Aurangabad in Sessions Trial No. 121/87/54/91 is, hereby, set aside. The appellants are discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 27th June, 2011. NAFR/Vikash/-