Criminal Appeal (SJ) No.219 of 1997 [Appeal against the judgment and order dated 19.8.1997 passed by the Assistant Sessions Judge, Kishanganj in Sessions Trial No.229 of 1986] 1. Sheikh Idris alias Idris Son of Late Shamsuddin 2. Dahoka Mian alias Dahaku Son of Late Khaunsi, Both residents of village Ghala, Police Station Terhagach, district Kishanganj 3. Taslim Mian alias Taslim Son of Sharfuddin 4. Yasin Son of Bashiruddin alias Basruddin No.3 and 4 residents of village Hawakol, Police Station Terhagach, District Kishanganj 5. Noor Alam Son of Kalwa alias Kalchu No.5 resident of village Ghala, Police Station Terhagach, District Kishanganj 6. Muslim Mian alias Muslim Son of Bashiruddin alias Basruddin No.6 resident of villae Hawakol, Police Station Terhagach, District Kishanganj …………………….. Appellants Versus The State of Bihar ………….. Respondent For the Appellants : Mr. Nazmul Hoda, Advocate For the Respondent : Mr. Arun Kumar Singh-5, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants have been convicted u/ss.436, 147, 323 and 379 I.P.C. and sentenced to R.I. for ten years, one year, one year and one year respectively by a judgment dated 19.8.1997 passed by the Assistant Sessions Judge, Kishanganj in Sessions Trial No.229 of 1986. 2. The case of the prosecution is that on 24.3.1985 about 25-30 persons variously armed with lathi came and tied the informant and his brothers and ransacked their houses as also committed theft and burnt one of the houses. 2 3. During trial the prosecution has examined seven witnesses. Out of whom, P.W.1 Sadanand Singh is a formal witness, whereas P.W.2 Devi Lal Mandal, P.W.3 Sit Lal Mandal, P.W.4 Jag Narain Mandal, P.W.5 Gairu Mandal, P.W.6 Shiva Mandal and P.W.7 Sita Ram Mandal have supported the fact that the accused persons came and set fire in the house which had been constructed on sikmi land. They also demolished the other house and assaulted the informant and the family members and took away the wheat, tisi and house hold articles. They all identified the present appellants in the transaction. However, it appears that the defence had seriously challenged the fact of their implication stating that it was false on account of land dispute between the parties and in fact the prosecution party had grabbed their land which was the genesis of occurrence. 4. The Investigating Officer has not been examined, who alone would have been a competent witness to testify on the objective evidence as to whether there were any remnants of burning as also whether it was the prosecution party, who had grabbed the lands of the accused persons. Therefore, non- examination of the Investigating Officer has definitely caused prejudice to the accused persons and on this score alone the appellants deserve to be acquitted. 5. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants on 19.8.1997 by the Assistant Sessions Judge, Kishanganj in 3 Sessions Trial No.229 of 1986 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 13th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )