Criminal Appeal (SJ) No. 173 OF 1995 ******** Against the judgment and order of conviction dated 31.8.1995 passed in Sessions Trial No. 137 of 1993 by the learned Ist Additional Sessions Judge, Vaishali at Hajipur. ****** 1. NAND KISHORE THAKUR S/O LATE SOGARTH THAKUR 2. RAM PUKAR THAKUR S/O LATE DIPCHAND THAKUR 3. NAWAL KISHORE THAKUR 4. YUGAL KISHORE THAKUR BOTH S/O LATE SOGARATH THAKUR 5. AWADH KISHORE THAKUR S/O RAMPUKAR THAKUR 6. MAHENDRA THAKUR S/O LATE SOGARATH THAKUR ALL R/O VILLAGE- NAYAGAON, P.S.- DESRI, DISTRICT- VAISHALI ……..….. Appellants Versus THE STATE OF BIHAR …..………. Respondent ************ For the Appellant : Mr. N.P. Sinha Sr. Adv. For the State : J.K. Singh APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellants have been convicted by the judgment dated 31.8.1995 passed in Sessions Trial No. 137 of 1993 by the learned Ist Additional Sessions Judge, Vaishali at Hajipur under section 307/149 I.P.C. whereas appellant no. 6 has been convicted to rigorous imprisonment for 3 years the rest of the appellants have been sentenced to rigorous imprisonment for 7 years. 2. The case of the prosecution is that on 11.9.1981 while the informant P.W.4 was at his darwaza the accused persons came there and dragged out his father. Then the appellant no.3 is supposed to have given a bhala blow on his stomach on account of which he died. In this transaction P.W. 4 and his mother were also injured. 3. It appears that the record of the case went missing and, therefore, the original documents could not be brought on record. 4. During trial the prosecution examined as many as 12 witnesses out of whom P.W. 7, 8 and 9 have been declared hostile whereas P.W. 10 is the doctor and P.W. 11 is the Investigating Officer, P.W. 1, 2 and 3 are co-villagers and eye-witnesses of the occurrence whereas P.W. 4 is the informant and P.W.5 is a witness who came the place of occurrence and P.W. 6 is a formal witness. For the same occurrence counter case was instituted by the defence but the documents could not be brought on record since the documents had gone missing. 5. However, D.W.1 was examined on their behalf who brought before the court the injury report vide exhibit-A series to show that as many as 4 accused persons were injured in the transaction. 6. Since Investigating Officer was not examined, the Trial Court acquitted the appellants of the charges under Section 302/34 I.P.C. since there was no cogent corroboration of the factum of murder of the father of the informant. 7. On going through the evidence of the witnesses, I find that P.W. 1, 2, 3 and 5 admittedly came after the occurrence and were not the eye-witnesses to the occurrence, P.W. 4 the informant is sole eye- witness who was also injured in the transaction, his mother who was injured was not brought to court because she was very old and unable to move around. 8. On going through the evidence, I also found that the prosecution has failed in its duty to explain the injuries sustained by the accused, admittedly in the same transaction. Even if, they were mostly superficial in nature, the prosecution was obliged to do so, and the court can not possibly construct a third case in absence of the true version of the occurrence. 9. Further, I also find that the evidence of doctor reveals that there was only one grievous injury sustained by the injured on the ulna which is a non-vital part. The rest of the injuries were simple in nature. In the manner of occurrence stated by the prosecution, it is difficult to uphold the conviction of the appellants under Section 307/149 as also the non-explanation of the injuries sustained by the accused by the prosecution further creates a doubt on the prosecution case. 10. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants by the judgment dated 31.8.1995 passed in Sessions Trial No. 137 of 1993 by the learned Ist Additional Sessions Judge, Vaishali at Hajipur are hereby set aside and they are acquitted of their respective charges. The appellants are discharged from the liabilities of their respective bail bonds. Patna High Court, ( Anjana Prakash, J. ) Patna Dated the 25th April, 2011 NAFR/ Fahad.