Criminal Appeal (SJ) No.357 of 1998 With Criminal Appeal (SJ) No. 368 of 1998 **** Against the judgment, dated 22.09.1998, passed by Shri Pradip Kumar, Additional Sessions Judge, IV, Vaishali at Hajipur, in S. Tr. No. 52 of 1988 **** 1. Mohan Rai, son of late Raghunand Rai 2. Bindeshwar Rai, son of Mohan Rai 3. Banwari Rai, son of Mohan Rai Residents of village Lodipur, P.s. Hajipur Nagar (Town), district Vaishali .. Appellants (in Cr. Appeal (S.J.) No.357/98) 1. Shyam Babu Rai, son of Mohan Rai 2. Naolakh Rai, son of Jhum Lal Rai 3. Ram Babu Rai, son of Jhum Lal Rai 4. Jai Babu Rai, son of Jhum Lal Ra 5. Thum Lal Rai, son of Raghu Nandan Rai 6. Harbansh Rai, son of Jhum Lal Rai, All residents of village Barhanshpur Diyar, P.S. Hajipur Town, district Vaishali .. Appellants (in Cr. Appeal (S.J.) No.368/98) Versus The State of Bihar .. Respondent (in both the cases) **** For the Appellants .. M/S Sudhir Singh & (in Cr. Appeal (S.J.) No.357) Raghwanand, Advs. For the Appellant .. M/S Upendra Prasad, (in Cr. Appeal (S.J.) No.368/98) Veena Kumari Jaiwal & Chandra Kala Jaiswal, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP (in both the cases) **** 2 P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. Both the appeals have been heard together and are being disposed off by this common judgment. 3. The appellants have been convicted under Section 324 of the Penal Code and sentenced to undergo rigorous imprisonment for two years and has, further, been convicted under Section 149 of the Penal Code and sentenced to undergo rigorous imprisonment two years, however, it has been ordered that both the sentences shall run concurrently. 4. The prosecution case is that the informant was harvesting the rahar crop on the land at about 06.30 a.m. in the morning on the date of occurrence. The appellants forming an unlawful assembly armed with lethal weapons started abusing and protesting the harvesting of the crops. The appellants claimed the crops to be them and thereby ordered Mohan Rai to assault. It is alleged that Shyam Babu threw bomb, Jai Babu Rai gave bhala blow to the informant and Jhumlal Rai also gave bhala blow to the informant and other persons have also assaulted by lathi and bhala. 5. On the fardbeyan, first information report lodged and after investigation the police submitted the charge sheet for offence under Section 307 of the Penal Code. 6. During the trial 14 witnesses were examined, which includes the doctor, P.W. 11. The witnesses supported about the 3 occurrence. However, the doctor, P.W. 11 found injury on the person of Ramjinis Rai, Raghu Nath Rai, Nautan Rai, Jaimangal Rai, Rama Nand Rai, Ramprit Rai and the injuries reports are Exhibits 1, 1/1, ½, 1/3, ¼ and 1/5. However, the doctor found all the injuries as simple in nature. The police officer has also been examined as P.W. 13. 7. The defence of the accused persons is that they were also claiming the land and there was injury on the persons of the appellants and the same doctor examined them and has proved injury, which are Exhibits N, N/1 and N/2 on the person of Ram Babu Rai, Naulakh Rai, Jhumlal Rai and has also proved the counter case. The fardbeyan and first information report of the said counter case marked as Exhibits “G” and “H”. 8. The learned Assistant Sessions Judge, taking into consideration the evidence of the witnesses found that this is a case and counter case in which there was free fight and, further, held that the injury on the persons of the prosecution are of simple in nature and from the injury report, itself, it is apparent that the injury was not inflicted with intention to kill and, hence, acquitted the appellants of charge under Section 307 of the Penal Code, but, convicted the appellants for offence under Section 324 of the Penal Code. Even taking into consideration the fact that there is injury on the person of the appellants and the appellants have also received simple injury and both sides indulged causing injury to other side and, hence, convicted the appellants under Sections 324 and 149 of the Penal Code. 9. The learned counsel for the appellants, however, 4 contended that the accused persons came and assaulted, however, the doctor found injury on the person though injuries are simple, but, the injury on the person of the prosecution’s side also are simple and superficial and, hence, since the prosecution has not explained the injury, it shall be deem that the prosecution has not come with clean hand and the genesis must other than what alleged. 10. Hence, taking into consideration the facts and circumstances and perusal of the records and the evidence of the witnesses, it is apparent that though the prosecution case that while informant was harvesting, accused persons came and assaulted. However, the injuries found on the person of the accused persons were simple and superficial and the doctor proved the injury has also proved the injury on the persons of the accused persons , but, the injury on the person of the appellants has not been explained, however, it is true that the injuries are simple and superficial, but, to the contrary the injury found on the person of the informant has also been found to be simple and superficial and, hence, in view of the facts and circumstances and the fact that the evidence suggests that there is free fight and both the sides were injured and there is no explanation for that and, hence, it can well be inferred that the prosecution has not come with clean hand nor explained the injury. The case is of case and counter case, between the parties claiming the land and both the parties got injured and, hence, a free fight can well be inferred between the parties. Hence, it can presume that the genesis of the occurrence and the manner has not been established by the 5 prosecution, the benefit of doubt is given to the accused, hence, I give the appellants the benefit of doubt. The prosecution has not proved the case beyond reasonable doubts, hence, the order of conviction and sentence recorded by the lower Court is set aside and the appeals are allowed. ( Gopal Prasad, J. ) The Patna High Court, The 29th day of September, 2011, N.A.F.R., S.A.