Criminal Appeal (SJ) No. 163 OF 1995 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Samiruddin alias Somu, S/o Chhetru. 2. Jhabar aliash Jhabar Ali, S/o Chhetru. 3. Iltaf aliash Mohammad Altaf, S/o Samiruddin. 4. Tahir, S/o Jhabar. 5. Mohammad Juned Alam alias Juned Alam, S/o Majiruddin. 6. Mohammad Sadique Hussain alias Sadique, S/o Majruddin. 7. Naziruddin, S/o Badruddin. 8. Mohammad Mumtaz Alam alias Mohammad Mumtaz Naiyer, S/oMajruddin. 9. Mohammad Noor Alam alias Noor Alam, S/o Naziruddin. 10. Mohammad Alam alias Mohammad Alamgir, S/o Naziruddin. Village-Dudhaunti, P.S.- Thakurganj, Dist.-Kishanganj. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Mr. Pankaj Kumar Sinha, Adv. For the State : Mr. Binod Bihari Sinha, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Sections 147 and 379 IPC and sentenced to six months RI under each count and further the appellants No. 3, 4 and 8 have been convicted under Section 323 IPC and also sentenced for the same period by a judgment dated 31.07.1995 in S.Tr. No. 98/89, Tr. No. 38/90 by the 2nd Additional Sessions Judge, Purnia. 2. The case of the prosecution is that on 21.12.1987 reportedly the appellants came upon the 2 fields of the informant and cut away the paddy sown by them and thus committed theft. 3. The prosecution in all examined nine witnesses out of whom P.W. 1 is the informant. P.W. 2, P.W. 3, P.W. 4 and P.W. 5 are close relative of the informant and eye-witness whereas P.W. 7 is the Doctor who examined the three injured and P.W. 8 is a formal witness. P.W. 9 is the Investigating Officer. 4. The defence on it behalf examined two witnesses mainly on the point that in fact the title and possession of the lands in question was with the appellants and, therefore, there was no question of a case of theft having been made out in the facts of the case. 5. The main point for consideration in cases of this nature is definitely as to which of the party had grown crops. But I find that the prosecution has failed in its primary duty of bringing any document or material on record to the effect that the lands were in fact owned and possessed by them. 6. Under the circumstances, it is difficult to accept the prosecution case as for the story of theft of crops go. As for the allegation under Section 323 IPC, I am of the view that there are serious discrepancies as to which of the accused persons had assaulted the injured and the injured himself did not fully support the case of 3 the prosecution. In the result, the appeal is allowed and the judgment dated 31.07.1995 passed by the 2nd Additional Sessions Judge, Purnia in S.Tr. No. 98/89, Tr. No. 38/90 is set aside. The appellants are discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 21st April, 2011. NAFR/Vikash/-