Criminal Appeal (SJ) No.127 OF 1994 (In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure) 1. CHANDESHWARI SAH, SON OF SRI SHIBAN SAH 2. PERMESHWARI SAH @ PARMESHWARI SAH, SON OF SRI SHIBAN SAH 3. PRABHU SAH, SON OF SHIR SHIBAN SAH 4. NEGAROO SAH, SON OF SRI SHIBAN SAH 5. GHOLAT SAH @ GHOLU SAH, SON OF SRI SHIBAN SAH 6. SHIBAN SAH, SON OF ASARFI SAH 7. BHUMI SAH @ BHUNESHWARI SAH, SON OF SRI FATI CHAND SAH @ KARI SAH 8. SURYA NARAIN SAH, SON OF SRI BHUMI SAH 9. BIRAN SAH, @ BIRENDRA SAH, SON OF SRI KAMESHWAR SAH 10. SUREN SAH @ SURENDRA SAH, SON OF BINESHWAR SAH 11. BHAGWAT YADAV, SON OF SRI BANNO YADAV 12. BALESHWAR YADAV, SON OF LATE BHANSHU YADAV @ BANSU YADAV 13. RAJESHWAR YADAV, SON OF LATE BANSHU YADAV 14. SATTO YADAV, SON OF LATE BANSHU YADAV ALL RESIDENTS OF VILLAGE – TITUAHA, P.O. & P.S. TRIVENIGANJ, DISTT. SUPAUL. -------- APPELLANTS Versus THE STATE OF BIHAR ---------RESPONDENT ---------- For the Appellant : Mr. Sharda Nand Mishra, Advocate. For the Informant : Mr. Jibuel Singh, Advocate For the State : Miss. Veena Kumari Jaiswal, Advocate --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: Heard The Appellants have been convicted under Sections 304/149 of the Indian Penal Code by the Second Additional Sessions Judge, Saharsa, in Sessions Trial No. 110 of 1991/52 of 1991 and Sessions Trial No. 18 of 1992(s)/1 of 1992 and sentenced to ten years rigorous imprisonment. The prosecution case is that on 28.1.1990 on account of a land dispsute between the parties while irrigation was taking place, the Appellants variously armed came to the place of occurrence (Fields) and on the orders of Appellant No. 12, Appellant No. 11 and Appellant 2 No. 7, Appellant Parmeshwari Sah (A-2) inflicted a spear blow on the neck of Prithwi Sah as a result of which he fell down and thereafter the rest of the accused persons have also assaulted him. The Appellant No. 3 is also said to have assaulted the Informant. The defence of the Appellant was that in fact, a free fight had taken place between the parties and there was a counter version of this occurrence by way of Triveniganj P.S. Case No. 6 of 1990 in which Appellant Shivan Sah (A-6) and Chandeshwari Sah (A-1) were also assaulted and removed to the Hospital in an unconscious stage. The prosecution to prove its case, examined ten witnesses out of whom PW-3, PW-8 and PW-9 are formal witnesses whereas PW- 6 is the Doctor who conducted post mortem on the deceased and PW-7 is the other Doctor who examined injured PWs-4 and 5, the accused Shiban Sah, Parmeshwari Sah and Chandeshwari Sah. PW-10 is the Investigating Officer of the case whereas PW-5 is the Informant and PW-4 is the injured witness and PWs-1 and 2 are material eye witnesses. The defence also examined three witnesses apart from having brought on record a large number of documents with regard to the ownership of the lands in question. DW-1 is on the point of relationship of the Informant with witness Badri Sah whereas DW-2 and 3 are formal witnesses who proved the Bed-head tickets of the injured accused. Undoubtedly, the Appellants had proved certain documents which could very well substantiate the fact that the land in question was in possession of the Appellants and it was the prosecution which was the aggressor. Further, I find that the prosecution has not explained the injuries on the persons of the three accused persons and, therefore, have not discharged their duty of bringing the true case before the 3 Court. This casts a serious doubt on the veracity of the prosecution case. Moreoever, the witnesses appear to be interested and have materially contradicted each other on the manner of occurrence as well as the genesis. In view of the discussion made above, the Appeal is allowed. The order of conviction and sentence passed againswt the Appellants in Sessions Trial No. 110 of 1991/52 of 1991 and Sessions Trial No. 18 of 1992(s)/ 1 of 1992 by the 2nd Additional Sessions Judge, Saharsa, is hereby set aside. The Appellants are discharged from the liability of their bail bonds. Patna High Court, Patna Dated, the 29th March, 2011 NAFR/S.ALI ( Anjana Prakash, J.)