Criminal Appeal No.46 OF 1994 (S.J.) [Appeal against the judgment and order dated 17.2.1994 and 19.2.1994 passed by the 1st Additional Sessions Judge, Jamui in Sessions case No.199 of 1988 Trial No.109 of 1994] 1. CHARITAR SAO @ RAM CHARITAR SAH SON OF BHATU SAH 2. AMO SAO @ AMBU SAH SON OF BIKU SAH 3. DAMODAR SAO @ DAMBU SAH SON OF BISHWANATH SAH 4. SUCHIT SAO @ SUCHIT SAH SON OF BHATU SAH 5. MAKUNI SAO @ MAKUNI SAH SON OF AJODHI SAH 6. KAILU SAO @ KAILU SAH SON OF BHUNA SAH 7. BAJRANGI SAO @ BAJRANGI SAH SON OF SUKHDEO SAH 8. BRAHMDEO SAH SON OF MADO SAH 9. BIGAN SAH SON OF BIKU SAH 10. PATO SAH SONOF MAKUNI SAH, ALL RESIDENTS OF VILLAGE MAHGRA TOLA DOMA TARI, POLICE STATION LAKSHMIPUR, DISTRICT MUNGER ……….. Appellants Versus THE STATE OF BIHAR ………….. Respondent For the Appellants : Mr. T.N. Maitin, SerniorAdvocate Mr. Rajeev Kumar Sinha, Advocate For the Respondent : Mrs. Pushpa Sinha-2, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: All the appellants have been convicted u/s.304 Part II I.P.C., whereas the appellants no.1 to 7 have been sentenced to R.I. for five years and a fine of Rs.2000/- and in default of which one year R.I., the appellants no.8 to 10 have been given the benefit of Section 360 Cr.P.C. and directed to execute a bond of Rs.3000/- with one surety of the like amount for a period of one year and they are also required to pay a compensation of Rs.1000/- each within three months from the date of the order by the 1st Additional Sessions Judge, Jamui in Sessions case No.199 - 2 - of 1988 Trial No.109 of 1994 by a judgment dated 17.2.1994 and 19.2.1994. 2. The case of the prosecution is that on 5.12.1986 at 5 P.M. the accused Brahmdeo Sah came to the Darwaja of the informant and asked the deceased to accompany him for work, after a while she heard some sounds at which she went to the place of occurrence and saw the deceased being assaulted with lathies and stone. When he was removed to the Hospital he died. 3. The prosecution in all has examined nine witnesses. Out of whom, P.W.1, P.W.2 and P.W.8 have been declared hostile, whereas the P.W.3 is the doctor, who proved the postmortem examination report and the P.W.4 is formal. P.W.6 is hearsay witness, whereas the P.W.5 is the informant, an eye witness. P.W.7, who is the son of the informant, is also an eye witness. 4. It has been submitted that the entire prosecution case is belied by the doctor’s evidence, who has stated that the liver was enlarged moderately and that all the external injuries were simple and not sufficient to cause death and, therefore, viscera was preserved for further chemical examination. 5. In view of the clear evidence of the doctor that the death was not the direct result of the assault as alleged by the prosecution, the conviction of the appellants is completely without any foundational facts, I am inclined to accept the proposition raised on behalf of the appellants. - 3 - 6. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants on 17.2.1994 and 19.2.1994 by the 1st Additional Sessions Judge, Jamui in Sessions case No.199 of 1988 Trial No.109 of 1994 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 5th May, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )