Criminal Appeal No.147 of 1995 (S.J.) [Appeal against the judgment and order dated 26.7.1995 passed by the 6th Additional Sessions Judge, Bhagalpur in Sessions Trial No.120 of 1987] 1. CHURAMAN YADAV S/O LATE MAHADEO YADAV 2. BIJOY YADAV S/O SRI CHURAMAN YADAV, BOTH RESIDENTS OF VILLAGE SONDIHA, P.S. SHAMBHUGANJ, DIST. BANKA ………. Appellants Versus THE STATE OF BIHAR ………….. Respondent Criminal Appeal No.149 of 1995 (S.J.) 1. POLO YADAV S/O SRI TAKAN YADAV 2. DEBO YADAV ALIAS DEVENDRA S/O SRI POLO YADAV 3. BIPIN YADAV S/O SRI POLO YADAV 4. RAMJEE YADAV S/O SRI SHIVU YADAV 5. SATYA NARAIN YADAV S/O SRI AYDHOYA YADAV 6. SONE LAL YADAV S/O SRI MEHI LAL YADAV 7. SAUDAGAR YADAV S/O SRI BHAGWAT YADAV, ALL RESIDENT OF SANHOULA, P.S. SHAMBHUGANJ, DISTT. BANKA (PREVIOUSLY BHAGALPUR) ……. Appellants Versus THE STATE OF BIHAR …….. Respondent For the Appellants : Mr. Krishna Mohan, Advocate Mr. Praveen Kumar, Advocate (In both the appeals) For the Respondent : Mrs. Indu Bala Pandey, Addl. P.P. (In Cr. A. No.147 of 1995) Mr. R.B. Roy ‘Raman’, Addl. P.P. (In Cr.A. No. 149 of 1995) --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants of Criminal Appeal No.147 of 1995 have been convicted u/s.307/149P.C. and sentenced to R.I. for seven years as also u/ss.147, 326 and 148 I.P.C. but no separate sentence has been passed and the appellants of Criminal Appeal - 2 - No.149 of 1995 have been convicted u/s.307/149 I.P.C. but except appellant no.7 all of them have been sentenced to R.I. for three years, whereas the appellant no.7 has been sentenced to six months R.I. In addition appellant no.4 has also been convicted u/ss.326/148 and other appellants u/s.147 I.P.C. but no separate sentence has been passed by the 6th Additional Sessions Judge, Bhagalpur in Sessions Trial No.120 of 1987 by a judgment dated 26.7.1995. 2. The prosecution case is that when the informant (P.W.5) was taking water for purposes of irrigation, the accused persons variously armed came there and appellant Bijay Yadav is said to have assaulted with farsa on his head. Thereafter co- accused Shibu Yadav assaulted him with a bhala on his left arm. The rest of the accused persons assaulted him with lathi. Appellant Churamani Yadav is also said to have assaulted the informant with farsa on his head. 3. The defence of the appellants was that in fact on the same day the prosecution party had assaulted Munni Lal Yadav, for which Shambhuganj P.S. case No.78(10) of 1985 was instituted against them and to screen themselves the present case was instituted by the prosecution. 4. During trial the prosecution examined seven witnesses in all. Out of whom, P.W.5 is the informant. P.W.6 is the doctor, who examined the injuries on the peson of the informant. P.W.7 is the Investigating Officer, whereas P.W.1, P.W.2, P.W.3 - 3 - and P.W.4 are the eye witnesses. 5. On going through the evidence of P.W.5 (the informant), it is evident that he accepted the fact of the counter version and that there was a free fight on account of the altercation that arisen between them. P.W.1, P.W.2, P.W.3 and P.W.4 have no doubt supported the fact that they were eye witnesses, but from a close scrutiny of their evidence it appears that they had come to the occurrence in the midst of the same. Undoubtedly they were all accused in the counter version. From the evidence of P.W.6, it appears that five injuries were found on the person of the informant, but on appreciation of the manner of occurrence, it is difficult to deduce that in fact the assault had taken place with intent to murder. Under the circumstances, this Court finds it difficult to sustain the conviction of the appellants u/s.307/149 I.P.C. and, therefore, the appellants are acquitted of the charges. However, their conviction u/ss.147, 148, 326 is maintained but the sentence is modified to the period already undergone by them during trial. 6. In the result, both the appeals are dismissed with the aforesaid modifications. Patna High Court Dated, 16th May, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )