CRIMINAL APPEAL NO. 67 OF 1994 ******** Against the judgment and order of conviction dated 1.3.1994 passed in Sessions Trial No. 137/1981 by the learned 1st Additional Sessions Judge, Saran at Chapra. ****** 1. UTTIM MAHTO 2. JAGLAL MAHTO, BOTH S/O KULDIP MAHTO 3. KULDIP MAHTO S/O BAL CHAND MAHTO ALL R/O VILLAGE- DHARMPUR, P.S.- KHAIRA, DISTRICT- SARAN ……..….. Appellants Versus THE STATE OF BIHAR …..………. Respondent ************ For the Appellant : Pramod Kumar Adv. For the State : Indu Bala Pandey APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellants are convicted under Section 307/34 I.P.C. and sentenced to rigorous imprisonment for 7 years as also appellant no. 3 have been convicted under Section 323 and sentenced to rigorous imprisonment for 6 months by the judgment dated 1.3.1994 in Sessions Trial 137 of 1981 by learned 1st Additional Sessions Judge, Saran at Chapra. 2. The prosecution case is that on 26.2.1980 while the informant was sleeping in his house, the accused persons variously assaulted him. The defence of the appellant is that on the same date the counter case was instituted by the appellant no.3 and it was a case of free fight between the parties and not one under Section 307 I.P.C. in support of the charges. The prosecution examined 10 witnesses out of whom P.W.1, 2, 3, 4, 7 are material witnesses whereas P.W.5 has been declared hostile and P.W.6 is tendered and the P.W.8 was the doctor who was examined the injury of the victims is also said to have examined the appellants. 3. In view of clear indication that it was the case of free fight between the parties, in my view, no offence under Section 307 I.P.C. would be made out. 4. On going through the evidence on record I find, that the place of occurrence is doubtful and the prosecution has not been able to explain to injuries on the accused which, in the facts of the case is fatal to the prosecution case. Further the fact that only interested witnesses have been examined by the prosecution indicates that the true picture of the occurrence has not been brought before the Court. 5. In the result, the appeal is allowed and conviction and sentenced of the appellants passed by the learned 1st Additional Sessions Judge, Saran at Chapra in Sessions Trial 137 of 1981 by the judgment dated 1.3.1994 are hereby set aside and the appellants are discharged from the liabilities of their bail bonds. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 28th March, 2011 NAFR/ Fahad.