Criminal Appeal (SJ) No. 313 of 1998 ****** Against the judgment of conviction and order of sentence dated 22.08.1998 and 24.08.1998 respectively passed by Shri Nirmalendu Kumar Kanth „Niraj‟, learned Ist Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 310 of 1991/54 of 1995. ****** 1. Channu Sah, Son of Late Ramlal Sah. 2. Gangdeo Sah, Son of Bhagelu Sah. 3. Daroga Sah, Son of Ram Lal Sah. 4. Jamuna Sah, Son of Channu Sah. 5. Bipin Sah, Son of Channu Sah. 6. Prabhu Sah, Son of Channu Sah. All residents of village – Dumara, P.S. – Chanpatia, District – West Champaran. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mr. S. N. P. Sinha, Sr. Advocate. Mrs. Mira Kumari, Advocate. For the Respondent : Mr. Sujit Kumar Singh, Advocate. ****** P R E S E N T 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. 2, 4 and 5 have been convicted for the offence under Section 304 part I of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and appellant nos. 1, 3 and 6 have been convicted for the offence under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five 2 years and a fine of Rs.2,000/- and in default of fine to undergo rigorous imprisonment for one year. 3. The prosecution case as alleged by the informant is that on 10.04.1991 while they were going by jeep bearing no. BEE-5594 then all the accused persons armed with Farsha, iron rod, Bhala and Lathi surrounded and assaulted with intention to kill. The motive of the occurrence has been alleged that on the same day at 12:30 noon the accused persons have surrounded and assaulted the driver and conductor of Maxi of the informant bearing no. B.R.-22-M/0594. 4. On the fardbeyan, First Information Report was lodged and after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions. After commitment the charge was framed under Section 302 of the Indian Penal Code and allied sections of the Indian Penal Code and during the trial ten witnesses were examined by the prosecution side. However, the case of the defence is that there is counter case and in the counter case it is alleged that at about 5:00 P.M. on the same day when Lallan Sah one of the accused was going on a jeep bearing no. V.R.V. 5572 and reached near the house of Ishahaque Mia of Dumara then the persons on the jeep no. B.E.E. – 3455 surrounded him and assaulted for the reason they had not given the side. However, it was disclosed that since there was no place so no side was given but the accused persons assaulted 3 and the defence has examined one witness the doctor and has proved Ext. A, the FIR of a counter case and Ext. B series the injury report of Lallan Sah, Prabhu Sah, Chunu Sah and Januma Sah and the case of the defence is that it is the prosecution who was aggressors and who assaulted and after considering the oral and documentary evidence adduced on behalf of the parties, the learned trial court convicted the appellants as stated above. However, the trial court in its judgment at para 31 has observed that “it appears that the prosecution version in the First Information Report does not give complete truth. There are omissions. But, at the same time, it cannot be denied that there had been a free fight between the parties and both sides sustained injuries. The place of occurrence in this case and the counter case are almost the same. The counter case indicates that the occurrence took place near the house of Ishahaque Mian. The house of Ishahaque Mian is at a few yards from the place of occurrence of the present case. It cannot be ruled out that the accused persons were the aggressors. The prosecution side sustained more serious injuries. The deceased Rambabu Prasad succumbed to his injuries. The injured Krishna Prasad had to face murderous attack on him. In this view of the matter, I do not find that the accused side was the aggressor. Some of the accused persons who have sustained injuries were not under precarious condition in the hospital. Almost all the injuries which they had sustained are simple in 4 nature. Some of the grievous injuries were caused by hard and blunt substance on non-vital parts of their body. The accused Prabhu Sah had a fracture of left ulna, which was grievous in nature. The accused Jamuna Sah had a fracture on the third finger on left hand which was grievous in nature.” 5. Learned counsel for the appellants, however, contended that from the observation of the learned lower court also it is apparent that there was free fight at the time of occurrence and the place of occurrence and both the cases are same. There are injuries on the person of the accused persons which are grievous in nature and hence the injury on the part of the appellants are not simple and superficial and the prosecution has not explained the injury on the person of the accused persons and it is fatal to the prosecution case and non- explanation of the injury on the person of accused indicates that the genesis of the occurrence is otherwise or suppressed and the witnesses denying presence of the injuries on the persons of the accused persons and are thus unreliable and the defence version is probable. 6. Having regard to the submission, it is apparent from the case of the prosecution that the occurrence took place and the driver and Khalasi of the Maxi of the informant was assaulted by the accused person. However, if the driver and Khalasi of the informant had been assaulted by the accused persons, there was no motive to again 5 apprehend and assault the prosecution party. However, the case of the defence is that the occurrence took place for not giving the pass appears to be more probable. Having regard to the fact that there is case and counter case and accused persons also suffered grievous injury as fracture of ulna and prosecution has not explained the injury on the person of accused though the injury on the person of the accused are not simple and superficial but are grievous as fracture of ulna and hence the appellants are entitled to benefit of doubt when the injury on the person of accused persons creates a doubt about the genesis of the occurrence and hence I give the appellants benefit of doubt as the prosecution has not been able to prove the charges beyond reasonable doubt and hence the order of conviction and sentence recorded by the learned lower court is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 2nd August, 2011. N.A.F.R./Kundan.