Criminal Appeal (SJ) No.106 OF 1995 **** Against the judgment and order of conviction and sentence dated 03.06.1995 and 19.06.1995 respectively passed by the 7th Additional Sessions Judge, Patna, in Sessions Trial No. 223 of 1993. **** 1. RAM PRAVESH YADAV son of Late Din Dayal Yadav, 2. Kariman Yadav 3. Gorakh Yadav, 4. Nawal Yadav, 5. Khirodhar Yadav, all sons of Ram Pravesh Yadav All are resident of village- Etwan, Police Station- Bihta, District- Patna …Appellants Versus THE STATE OF BIHAR …Respondent **** For the appellants : Mr. Ashok Kumar, Advocate For the respondent : Mrs. Indua Bala Pandey, A. P. P. **** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH **** Anjana Prakash, J. All the appellants have been convicted under section 307/34 Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and appellant nos. 2 and 5 have further been convicted under section 325 Indian Penal Code and sentenced to undergo rigorous imprisonment for five years, appellant no.1 is further sentenced to undergo rigorous imprisonment for two years under section 324 Indian Penal Code, appellant nos. 3 and 4 have been convicted and sentenced to under rigorous imprisonment for one year each under section 323 Indian Penal Code, appellant nos. 1, 2 and 5 have been convicted under section 148 Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and appellant nos. 3 and 4 have further been convicted under section 147 Indian Penal Code and sentenced to undergo rigorous imprisonment for one year by the 7th Additional Sessions Judge, Patna, by his - 2 - judgment dated 03.06.1995, in Sessions Trial No. 223 of 1993. All the sentences were ordered to run concurrently. 2. The case of the prosecution is that on 15.12.1992, when the informant P.W.4 had gone to his boring to irrigate his field and wanted to unlock the boring room at which time the appellant no.5, who was hiding there, gave a iron rod blow on the head of the informant, whereas, appellant no. 1 gave a Chura blow on the left knee and appellant nos. 3 and 4 gave repeated lathi blows on the informant and appellant no.2 gave spade blows from his back portion on the informant. 3. During trial, the prosecution examined nine witnesses, out of whom, P.W. 1 and 2 have been tendered, whereas, P.W.4 is the informant and injured and P.W.5 is the Investigating Officer, P.W.6 is the Doctor, who examined the injured and P.W. 7, 8 and 9 are formal in nature. P.W.3 has deposed as eye witness. During trial, his attention was drawn towards his previous statement recorded during investigation from which it appeared that he was a hearsay witness. 4. On careful analysis of the evidence, it appears that the informant P.W. 4 is the sole eye witness and, therefore, the Court has to be cautious in accepting the evidence of P.W.4. From the evidence of P.W.4, it appears that he had stated after he was assaulted there was copious blood on the ground but the Investigating Officer did not find enough blood for collection. Even though the prosecution has come up with positive motive that it was to pressurize him since the accused wanted to purchase his land which lay adjacent to their own land but not a single chit of document has been brought on record by the prosecution to prove this fact. On the contrary, the motive has been disproved during trial which is evident from Ext.12. The Investigating Officer also did not find any positive - 3 - mark such as trampling mark at the place of occurrence which would suggest that in fact the occurrence had taken place at the place claimed by the informant. 5. P.W.6, who is the doctor, had found seven injuries on the person of the informant but only injury nos. 1 and 2 were found on the vital part and only injury no.2 was said to be grievous. Even though the informant had been advised for x-ray but the x-ray report is not on record. 6. From the manner of occurrence, it is difficult to accept the prosecution case that the appellants had intended to cause death of the informant and, therefore, the appellants are acquitted of charge under sections 307/34 Indian Penal Code. However, their convictions under sections 147, 148, 323, 324 and 325 Indian Penal Code remains in tact with modification in the sentence to one that has already been undergone by them during trial. 7. In the result, the appeal is dismissed with modification in the conviction and sentence. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 12th May, 2011 NAFR/ JA/- .