IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) No.1052 of 2010 1. Ram Chandra Rai @ Ram Chandra Prasad, 2. Banslal Rai, 3. Harsbans Rai 4. Ramdeo Rai, Appellant Nos.1 to 3 are sons of late Phekan Rai and appellant No.4 is son of late Sheo Nandan Rai. All r/o. village- Madhopur Roshan @ Bhisa, P.S. Dumra, District- Sitamarhi. Versus THE STATE OF BIHAR ----------- 03. 20.12. 2010 L.C.R. has been received in this case. The appellants were convicted under Sections 147 & 323 of I.P.C. and as to the quantum of sentence they were released by the trial-court after due admonition under Section 360 of Cr.P.C. Since the sentence was of admonition only, this appeal was finally heard at the state of admission with the consent of the parties. Briefly stated the prosecution case was that on 03.05.1994 at about 7.30 A.M. the appellants along with two others namely, Hanslal Rai and Phekan Rai (both dead) constructing brick wall by encroaching upon the land of the informant and that when his (informant’s) uncle Ganga Rai (P.W.1) protested to it appellant Ram Chandra Rai, Phekan Rai, since dead ordered to kill whereupon appellant 2 Ram Chandra Rai assaulted Lakshmi Rai (P.W.8) by means of Bhala causing injury on his right Panjra and appellant Harbans Rai assaulted Ganga Rai (P.W.1) with Farsa causing injury on his head and leg. Further allegation was that when informant Nagendra Rai rushed to rescue them appellant Ram Chandra Rai assaulted him by Bhala on his right palm. It was also alleged that when informant’s cousin Akhleshwar Rai came to save them, appellants Banslal Rai, Ramdeo Rai and two deceased accused Hanslal Rai and Phekan Rai had assaulted the informant and Akhleshwar Rai both with lathi. In view of the charge sheet submitted by police appellants Ram Chandra Rai and Harbans Rai were charged under Section 148 I.P.C. Ram Chandra Rai was separately charged under Section 307 I.P.C. and Harbans Rai was charged under Section 324 I.P.C. The remaining two appellants namely, Banslal Rai and Ramdeo Rai were charged under Sections 147 & 323 I.P.C. As many as eight witnesses were examined 3 by prosecution P.W.1 Ganga Rai, P.W.4 Akhleshwar Rai, P.W.5 Nagendra Rai and P.W.8 Lakshmi Rai were examined as the witnesses who had also received injury in the occurrence. P.W.2 Ram Jinis Rai, P.W.6 Nand Rai and P.W.7 Tuna Rai were produced as eyewitness and P.Ws. 6 & 7 turned hostile to prosecution and they did not support the prosecution story. P.W.3 Dr. R.K. Yadav was the doctor, who had examined the injuries on Nagendra Rai (P.W.5), Ganga Rai (P.W.1) and Akhleshwar Rai (P.W.4) and their injury reports were respectively proved as Exts. 1, 1/1 & ½. Any injury certificate regarding injured Lakshmi Rai was not proved nor the doctor who had examined his injury was produced by the prosecution. As to the injury on injured Nagendra Rai, the doctor witness P.W.3 R.K. Yadav proved that he (Nagendra Yadav) had one lacerated wound on his right palmer aspect simple in nature, caused by hard and blunt substance. So far injury on Ganga Rai was concerned, the doctor proved thatGanga Rai had four 4 lacerated wound and one bruise of simple in nature caused by hard and blunt substance. As to the injury on the injured Akhleshwar Rai the doctor witness proved that Akhleshwar Rai had only one lacerated injury simple in nature on the anterior aspect of right leg 4” below right knee caused by hard and blunt substance. So far the evidence of witnesses and the injured persons are concerned the learned trial-court discussed the evidence and it found that the witnesses had adduced their evidence about the assault stating to have been caused in the same manner as described in the F.I.R. There was categorical allegation that the appellant Ram Chandra Rai had assaulted Lakshmi Rai by means of Bhala on his Panjra and appellant Harbans Rai had assaulted Ganga Rai by means of farsa on his head and leg but the medical evidence did not find any punctured or incised wound caused to them by means of Bhala and Farsa as alleged by the prosecution. In view of the medical 5 evidence the learned trial-court found the prosecution story contradicted and discredited regarding the assault by means of Bhala and Farsa. But, the learned trial-court came to find that in absence of any injury like puncutured or incised injuries the appellant’s Ram Chandra Rai and Harbans Rai were liable to be convicted under Section 147 of I.P.C. and accordingly passed an order of conviction thereunder. No doubt, some lacerated wounds simple in nature caused by hard and blunt substance was on the injured Ganga Rai and any medical evidence was not proved regarding any injury on Lakshmi Rai. There was no allegation on the appellants Ram Chandra Rai and Harbans Rai that they caused any assault by means of hard and blunt substance. In such view of the matters, the learned trial-court was not justified in convicting the appellants Ram Chandra Rai and Harbans Rai under Section 147 I.P.C. when there was only allegation against them that they had caused assault respectively by means of Bhala and Farsa and no injury caused by such 6 weapon was proved. Therefore, the conviction under Section 147 I.P.C. as passed against the appellants Ram Chandra Rai and Harbans Rai is not fit to be sustained and hence they are set aside. The appellants Banslal Rai and Ramdeo Rai have been convicted under Sections 147 & 323 I.P.C. Prosecution story was that the two appellants Banslal and Ramdeo as well as other two Hanslal Rai and Phekan Rai both dead had assaulted the informant and Akhlesh Rai. The informant has received only one injury lacerated wound on the right hand palmer aspect caused by hard and blunt substance simple in nature. Akhleshwar Rai had also got only one injury, a lacerated wound 3 cm x 1 cm on anterior aspect of right leg four inch below right knee simple in nature caused by hard and blunt substance. So far the single injury on the informant’s palm is concerned the informant had himself claimed in the F.I.R. that such injury was caused by Ram Chandra Rai by means of Bhala. Therefore, it becomes doubtful that such injury was caused by the appellants Banslal and 7 Ramdeo or the two deceased accused namely, Hanslal and Ramdeo. Therefore the prosecution story that accused Hanslal and Phekhan Rai had caused the sole injury on the informant Nagendra Rai becomes doubtful and thus it does not warrant a conviction to these appellants under Section 323 I.P.C. Further the appellants Banslal and Ramdeo as well as two deceased accused Hanslal Rai and Phekan Rai are said to have assaulted the injured Akhleshwar Rai by means of Lathi but Akhleshwar Rai has also got only one injury, a lacerated wound nears his knee and it is not specified as to who of the four appellants had caused the assault. In such view of the matters, the conviction of the appellants namely, Banslal Rai and Ramdeo Rai under Sections 323 & 147 I.P.C. is also not justified. In view of the facts and circumstances as discussed the conviction of the appellant Banslal Rai and Ramdeo Rai under Sections 147 & 323 I.P.C. is not fit to be upheld, hence the same is set aside. Thus, considering the facts and circumstances as 8 discussed above, I find that the conviction and sentence as passed by the learned trial-court is not fit to be sustained in law, hence, the same is set aside and the appellants are acquitted of their respective charges and the appeal is allowed. Mkr. (C.M. Prasad, J.)