Criminal Appeal (SJ) No.278 of 1997 [Appeal against the judgment and order dated 25.9.1997 passed by the 5th Additional Sessions Judge, Nalanda in Sessions Trial No.444 of 1992] 1. Kapil Gope son of Sidheshwar Gope 2. Nageshwar Gope son of Mosafir Gope 3. Awadh Gope son of Ram Saran Gope 4. Mosafir Gope son of Late Hari Gope 5. Nawal Gope 6. Nasib Gope, Both sons of Nathuni Gope 7. Saneshi Gope alias Ram Sanehi Gope son of Faggu Gope 8. Raman Gope alias Ram Nandan Gope son of Mosafir Gope, All residents of village Mansapur, Police Station Chandi, District Nalanda …………………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent For the Appellants : Mr. Madhukar Krishna Sinha, Advocate For the Respondent : Mr. Abhimanyu Sharma, Addl. P.P. With Criminal Appeal (SJ) No.310 of 1997 Baleshar Gope S/o Deoki Gope, resident of village Mansapur, P.S. Chandi, District Nalanda ……….. Appellant For the Appellant : Mr. Gauri Shankar Prasad, Advocate For the Respondent : Mrs. I.B. Pandey, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants of the two appeals have been convicted u/ss.324/149 I.P.C. and sentenced to R.I. for three years. Further the appellant no.4 Mosafir Gope and appellant no.5 Nawal Gope of Criminal Appeal No.278 of 1997 have been convicted u/s.27 of the Arms Act and sentenced to R.I. for four years by the 5th Additional Sessions Judge, Nalanda in Sessions Trial No.444 of 1992 by a 2 judgment dated 25.9.1997. 2. The case of the prosecution according to the informant Ram Briksha Gope is that on 31.10.1991 while he, his brother Dineshwar Gope and nephews Dayanand Gope and Pramhans Gope were cleaning drain near a well, the appellants objected to the same. When the informant and others furnished an explanation that the drain was common, some bricks were thrown and shots were fired from the roof of dalan of appellant Mosafir Gope but it did not hit anyone. A little later the accused persons variously armed came and Awadh Gope (appellant no.3) and Mosafir Gope (appellant no.4) are said to have ordered to kill, upon which accused Rabindra Gope (since acquitted) fired causing pellet injuries to the informant and appellant no.5 (Nawal Gope) fired causing injuries to one Dineshwar. Ram Sanehi is said to have proceeded to cut the neck of Dineshwar on the orders of appellant no.3 (Awadh Gope) but the witnesses arrived and, therefore, no further harm could be done. 3. During trial the prosecution has examined ten witnesses in all. Out of whom, P.W.2 Rajendra Kumar Verma, P.W.4 Surendra Prasad and P.W.6 Kedar Prasad are formal witnesses, whereas P.W.9 Dayanand Prasad did not support the case of the prosecution and were therefore declared hostile. P.W.10, the Investigating Officer, stated that he inspected the place of occurrence on the dark night and, therefore, his evidence with regard to the same was rejected by the court below. 4. P.W.7 Dineshwar Gope is the brother of the informant and he stated that on the date of occurrence the accused persons 3 asked him and his brother not to clean the drain, at which an altercation arose between the parties and brick bating started. When the informant and others started to flee away, the rest of the accused persons variously armed came there and fired. 5. P.W.8 is Dr. Rambriksh Prasad, who examined Dineshwar Yadav on 31.10.1991 and found a lacerated wound on his right side of neck which was caused by fire arm. He also examined Rambriksh Yadav, the informant, on the same day and found four pea size lacerated wound on the left side of the chest and some injuries on the left upper arm. The injuries were simple in nature. 6. P.W.1 Baldeo Gope, P.W.3 Paramhans Gope and P.W.5 Jathu Gope are nephews of the informant and they also fully supported the case of the prosecution in its material particular. 7. On behalf of the defence three witnesses were examined, out of whom D.W.1 Ramprit Singh Yadav deposed that a Panchayati for resolution of the dispute with regard to the drain had taken place on 19.6.1988 and thereafter there was no dispute from the side of the accused persons. D.W.2 Kailash Yadav deposed that in fact on the date and time of occurrence the informant and his men were demolishing the wall of the house of the accused Awadh Gope and Nagina Gope and had set fire to his house, where after there was firing from both the side and the injured had sustained injuries in such firing. There was no dispute over the well after Panchayati. D.W.3 also deposed that it was Dineshwar Gope, who had opened fire in the transaction which had hit the accused persons. 4 8. On a fair evaluation of the evidence adduced on behalf of both the parties, there is no manner of doubt that indeed there was a counter version with regard to the same occurrence vide Exhibit A and none of the witnesses explained the injuries sustained by the accused persons. This raises a reasonable doubt as to whether the prosecution has brought before the court the correct version of the occurrence or it has attempted to suppress part of the same to impress upon the court that they were not at fault and it was only the accused persons who had indulged in illegal activities. In view of such serious doubt in the genesis and manner of occurrence, in my view the conviction is fit to be set aside. 9. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants on 22.11.1994 by the Special Judge, E.C. Act, Begusarai in Bakhri P.S. case No.19 of 1989 is set aside. The appellant is discharged from the liability of his bail bonds. Criminal Appeal No.206 of 1997 is dismissed with aforesaid modification in conviction and sentence. Patna High Court Dated, 22nd July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )