Criminal Appeal (SJ) No.226 OF 1994 (Appeal against the Judgment and Order dated 7.7.1994 passed by the District and Sessions Judge, Madhepura, in Sessions Trial No. 177 of 1987) 1. UPENDRA MANDAL, SON OF MAHAVIR MANDAL 2. ISHWARDEO SINGH, SON OF LATE SHATRUGHANA SINGH 3. BOTH RESIDENTS OF VILLAGE MAJOURA, P.S. BIHARIGANJ, DISTT. MADHEPURA. -------- APPELLANTS Versus THE STATE OF BIHAR ------RESPONDENT For the Appellants : Mr. Sridhendva Nr. Singh, Advocate. Mr. Hare Krishna Kumar, Advocate For the State : Mr. Binod Bihari Singh, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: Heard The Appellant No. 1 has been convicted under Section 379/34 of the Indian Penal Code and sentenced to two years rigorous imprisonment whereas the Appellant No. 2 has been convicted under Sections 304 Part II of the Indian Penal Code and sentenced to six years rigorous imprisonment and also under Section 323 of the Indian Penal Code and sentenced to six months rigorous imprisonment by a Judgment dated 7.7.1994 passed by the Sessions Judge, Madhepura, in Sessions Trial No. 177 of 1987. The case of the prosecution is that he was informed by the two Chowkidars that the Appellant No. 2 had taken away their Cycle and when they demanded return of the same, Appellant No. 2 assaulted Mahendra Paswan with Lathi on his 2 leg and also slapped Dukha Paswan. When the Informant went to intervene in the matter, the Appellants threatened that they would take extreme steps and started shooting rows indiscriminately on account of which the younger brother of the Appellant No. 2 was injured and died. After investigation, charge sheet was submitted and charged under Sections 302 and allied Sections but the Appellants were acquitted of the charges and convicted as mentioned above. During trial, the prosecution examined ten witnesses out of whom PW-1 has been declared hostile whereas PW-2 is formal. PW-3 is on the point of the theft of the bicycle. PW-4 is tendered witness. PW-5 is on the point of assault whereas PW- 6 and PW-8 are the two Chowkidars whose names were mentioned in the First Information Report. PW-7 is also a Chowkidar who had gone to the house of the Appellant No. 2 for searching the bicycle whereas PW-9 is formal and PW-10 is the Doctor who conducted post mortem examination. Admittedly, the Investigating Officer has not been examined nor has the Informant been examined in the present case. So, ineffect PWs-6 and 8 are the two material witnesses and the case rests mainly on their evidence. It also appeas that PWs-6 and 8 are related to each other and they had enmity with the Appellants. These two witnesses were undoubtedly interested witnesses since the entire genesis of the occurrence revolved around them. Apart from interested witnesses, there is 3 no independent corroboration on the point of assault by the Appellants in the background of the fact that the Informant and the Investigating Officer have not been examined, it would be unsafe to rely on the testimony of the two interested witnesses. In the result, the Appellants are given the benefit of doubt and acquitted of the charges. The Appeal is allowed and the order of conviction and sentence passed against the Appellants in Sessions Case No. 177 of 1987 by the Sessions Judge, Madhepura, is hereby set aside. The Appellants are discharged from the liability of their bail bonds. Patna High Court, Patna, Dated, the 6th April, 2011 NAFR/S.ALI ( Anjana Prakash, J.)