Criminal Appeal (SJ) No.58 OF 1997 [Appeal against the judgment and order dated 5.2.1997 passed by the 1st Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No.110 of 1995/ 202 of 1995] Jamaluddin Ansari s/o late Hafijullah Ansari, resident of village Bardahi, P.S. Sikta, District West Champaran …………………….. Appellant Versus The State of Bihar ………….. Respondent For the Appellant : Mr. Anish Kumar Jha Advocate For the Respondent : Mr. Suraj Pd. Singh, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/s.304 Part II I.P.C. and sentenced to R.I. for eight years as also a fine of Rs.5000/- and in default of which further R.I. for one year by a judgment dated 5.2.1997 passed by the 1st Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No.110 of 1995/ 202 of 1995. 2. The case of the prosecution according to the informant, who happens to be the full brother of the appellant, is that on 3.11.1994 a quarrel arose between the parties over partition of the land and while the deceased was going towards the roof of the house, appellant is said to have given a bhala blow on his head, on account of which he sustained serious injury. Initially the case was instituted u/s.307 I.P.C. but seven days later Section 302 I.P.C. was added. The appellant was also charged u/s.302 I.P.C. but acquitted of the charge and convicted as mentioned above. 2 3. During trial, the prosecution has examined nine witnesses. Out of whom, P.W.1 is the wife of the informant, P.W.2 is the son of the informant, P.W.3 is the informant himself, whereas P.W.4 and P.W.5 are on the factum of occurrence and P.W.8 is a formal in nature. P.W.9 is the doctor, who examined the injured, whereas P.W.7 is the doctor, who performed the postmortem on the deceased and P.W.6 is the Investigating Officer. 4. On behalf of the defence, two witnesses were examined on the point that in fact on the date of occurrence an altercation had arisen between the parties in which the deceased had fallen on a hand-pump and sustained injury, on account of which he later died. P.W.5, a co-villager of the informant, has also supported the defence of the appellant . 5. On going through the evidence of P.W.1, the mother of the deceased, I find that she admitted in her cross examination that the appellant did not have any arms with him and also that the stairs and the courtyard both were cemented suggesting that in fact the deceased could have fallen on the hard surface and sustained injury which caused his death later on. The Investigating Officer also did not find any blood stains at the place of occurrence. On a fair assessment of the prosecution case, I find that no independent witness has supported the case as also that even the three material witnesses, who are close relatives of the deceased, have given contradictory evidence which makes the prosecution case suspicious. 3 6. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellant on 5.2.1997 by the 1st Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No.110 of 1995/ 202 of 1995 is set aside. The appellant is discharged from the liability of his bail bond. Patna High Court Dated, 4th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )