Criminal Appeal (SJ) No. 98 OF 1997 Against the judgment and order dated 27.03.1997 passed by Sri Braj Nandan Sahay, 7th Additional District & Sessions Judge, Chapra in S.Tr. No.407/88. ************ 1. Kameshwar Rai @ Kumkum Rai, S/o Late Sheo Balak Rai. 2. Jamadar Rai, S/o Babulal Rai. 3. Wakil Rai, S/o Radha Rai. All are resident of Village-Masaha, Police Station-Marhowrah, District-Chapra (Saran). ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants : Mr. J.P. Singh, Adv. For the State : Ms. Renu Kumari, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. It has been submitted that appellant No. 1 Kameshwar Rai @ Kumkum Rai and appellant No. 2, Jamadar Rai had died and, therefore, their appeal abates. 2. The appellant No. 3 has been convicted under Sections 148 and 323 IPC and sentenced to RI for one year under each count by the 7th Additional District & Sessions Judge, Chapra in S.Tr. No. 407/88 by a judgment dated 27.03.1997. 3. In brief the prosecution case is that on 15.07.1987 while the informant Jharilal Rai was returning to his house after taking bath he found Babulal Rai, Jamadar Rai and Sipahi Rai were cutting his trees. When he protested the accused persons caught 2 hold of him whereafter the rest of the three accused persons came there and informant were assaulted by the three appellants. When his wife came to intervene appellant Jamadar Rai assaulted her with a farsa. 4. During trial the prosecution in all examined nine witnesses out of whom P.W. 1 and P.W. 2 are formal witnesses whereas P.W. 7 and P.W. 8 have been declared hostile and P.W. 6 is a tendered witness. P.W. 9 is the Doctor who examined the injured whereas P.W. 3, P.W. 4 and P.W. 5 and P.W. 5A are the witnesses on the point of occurrence. 5. The defence also examined two witnesses on its behalf to bring on record the counter- version of the case instituted as Marharwah P.S. Case No. 84/87 and marked as Exhibits A and B respectively. In the said transaction appellant No. 1, Kameshwar Rai was also said to have been injured for which the defence brought the injury reports vide Exhibits C and C/1. 6. From the evidence of the material eye witnesses I find that they have denied the counter- version as also the injury sustained on the appellant No. 1. On this score alone the prosecution case is fit to be rejected since evidently it was the duty of the prosecution to explain the injuries of the appellants and in absence of the same reasonable inference can be 3 drawn that the prosecution has not been truthful in his depiction of the prosecution case. 7. In the result, the appeal is allowed and the judgment dated 27.03.1997 passed by the 7th Additional District & Sessions Judge, Chapra in S.Tr. No. 407/88 is, hereby, set aside. The appellant No. 3 is acquitted of the charges and discharged of the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 5th July, 2011. NAFR/Vikash/-