Criminal Appeal (SJ) No.202 of 1998 Against the judgment and order of conviction and sentence dated 26. 05. 1998, passed by Shri Baikunth Nath Shahi, 2nd Additional District & Sessions Judge, Nawadah, in Sessions Trial No. 339 of 1994/56 of 1996. 1. Hari Nandan Singh, son of Late Laxman Singh. 2. Gauri Singh, son of Late Jagdish Singh. 3. Vijay Singh, son of Rajo Singh. 4. Arvind Singh, son of Awadh Singh. 5. Kapil Singh, son of Mani Singh. 6. Gorelal Singh, son of Kapil Singh. 7. Lallan Singh alias Lala Singh, son of Harinandan Singh. All residents of Village- Barat, P.S. Narhat (Sitamarhi), District- Nawadah. .... .... Appellants. Versus The State Of Bihar . ... .... Respondent. For the Appellants : Mr. S.N.P. Sinha, Senior Advocate. Mr. Mukesh Kumar, Advocate. Mrs. Mira Kumari, Advocate. For the Respondent. : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant nos. 1 to 4 have been convicted under Section 307/149 I.P.C. and have been sentenced to undergo rigorous imprisonment for seven years. Further convicted under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for two years. However, Appellant nos. 5 to 7 have been convicted under Section 2 307/149 I.P.C. and have been sentenced to undergo rigorous imprisonment for three years. Further they have been convicted under Section 147 I.P.C. and sentenced to undergo rigorous imprisonment for one year. 3. The prosecution case as alleged that while the accused Harinandan Singh trying to take water from the field of the informant which was protested by the prosecution party which culmination in verbal as well as physical altercation which culminate assault by lathi, farsa, saif, garasa and khanti. 4. On the basis of Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted. Cognizance was taken and the case was committed to the Court of Sessions. After commitment, charge was framed under Sections149 and 148 I.P.C. 5. During trial eight witnesses were examined on behalf of the prosecution in addition documentary evidence also adduced. The defence has also adduced one witness as D.W. 1 and also adduced documentary evidence which is marked as Ext. A and B. Documentary evidence adduced on behalf of the appellants are Ext.A, Fardbeyan, Ext. B formal F.I.R., Ext. C, Charge sheet, 3 Ext.D is the evidence of Doctor Bishundeo Prasad in Sessions Trial No. 55/94/55/96. 6. Learned lower court after considering the evidence found that five persons have been injured from the side of the prosecution side and injury report has been proved and also found that one of the accused Umakant also received injury and during occurrence he died and taking into consideration the evidence and analysising the evidence of both prosecution and defence observed that it clearly indicates that there has been free fight between the parties. The learned lower court also considered that prosecution, though, has given explanation that injury of Umakant may be by the act of the accused person itself as Umakant may have received injury from his own side during occurrence. Learned lower court in the impugned judgment however mentioned that a counter case filed by the defence regarding death of Umakant has also resulted in conviction holding Srikant Singh as convict who is prosecution witness. However, the lower court convicted and sentence the appellant holding that version of prosecution and defence may be true and are possible when occurrence took at the same place. 4 7. Learned counsel for the appellants however, contends that when there was free fight as observed by the lower court, the conviction under Section 147, 148 and 149 is not sustainable is well established and hence order of conviction and sentence is bad. 8. However, witnesses have supported the prosecution case about assault and five persons have been injured from the side of the prosecution side, but the prosecution in their evidence has also admitted that injury on the person of accused Umakant during the same transaction, there is no explanation for the injury on the person of Umakant in the Fardbeyan by which he died and the explanation provided during trial that injury on Umakant have by the act of accused persons themselves is not acceptable. Moreover, having regard to the fact that in the said counter case, the prosecution party who are accused in that case have been convicted as is apparent from the judgment observed by the Presiding Officer before whom both case were tried together and judgment pronounced separately. 9. From the evidence of the parties it is apparent that there is free fight and both and both parties got injury 5 and Umakant died in the same transaction is itself admitted by the prosecution in its explanation that Umakant may have been died out of injury which is not acceptable. 10. Hence having regard to facts and circumstances and from the nature of evidence when there is free fight, conviction and sentence recorded with aid 149 I.P.C. is not sustainable and hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court The 3rd August,2011. NAFR/m.p. ( Gopal Prasad, J.)