Criminal Appeal (SJ) No. 161 OF 1995 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ Binoy Sah @ Binay Kumar Sah, S/o Girija Sah, R/o Belhar, P.S.-Belhar, District-Munger. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Mr. Pramod Kumar Sinha, Adv. : Mr. Arvind Kumar Sharma, Adv. : Mr. Madhukar Narain Sinha, Adv. : Mr. Rakesh Kumar Sinha, Adv. For the State: Mr. Dinesh Singh, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Section 304 Part II IPC and sentenced to RI for seven years by the 1st Additional Sessions Judge, Munger in Sessions Case No. 634 of 1990 by a judgment dated 05.08.1995. 2. The case of the prosecution is that on 29.03.1990 the informant learnt that his brother had been variously assaulted by the accused persons and was lying injured and unconscious on account of which when he went there he saw him having sustained an injury on the head. The deceased was then taken to the hospital where he was being treated but he died after three days. 3. The prosecution in all examined nine witnesses out of whom P.W. 1 is the informant whereas 2 P.W. 2 even though an independent witness has been declared hostile. P.W. 3 has been tendered whereas P.W. 4, P.W 5 and P.W. 6 have been examined as eye- witnesses. P.W. 7 also an independent witness has been tendered. P.W. 9 is the Advocate’s Clerk who is formal in nature whereas P.W. 8 is the Doctor who had conducted the post-mortem examination upon the deceased. 4. The defence examined one witness on its behalf and proved Exhibit A which is the injury report of the appellant for injury having been sustained by him in the same transaction as also proved Exhibit B which is the First Information Report of the counter-case in which the P.W. 1, P.W. 4, P.W. 5 and P.W. 6 have been arraigned as accused. 5. On going through the evidence of the eye- witnesses, one finds that in course of assault upon the deceased he fell down near the electric pole. In this background if the evidence of the Doctor is seen one finds that the deceased had sustained a single injury on his forehead and, therefore, the possibility of the deceased having sustained this injury in the course of the scuffle on account of fall can not be ruled out. Moreso, because the witness, P.W. 1 stated that the deceased had been assaulted from the back whereas the fatal injury was found on the forehead. The defence document also demonstrates that some kind of scuffle 3 had taken place between the parties in which course the appellant had also been assaulted. 6. Keeping the aforesaid in mind, this Court is of the view that the possibility of exaggerating the factum of occurrence can not be ruled out and it is difficult to conclude positively that the deceased had died on account of assault meted out by the appellant. 7. In the result, the appeal is allowed and the judgment dated 05.08.1995 passed by the 1st Additional Sessions Judge, Munger in Sessions Case No. 634 of 1990 is set aside. The appellant is discharged of the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 26th April, 2011. NAFR/Vikash/-