Criminal Appeal (SJ) No.109 OF 1994 --------- Against the judgment and order of conviction and sentence dated 23.3.1994 passed by Shri Akhilesh Chandra, Additional Sessions Judge – XI, Gaya in S.T. No. 498 of 1990 / 81 of 1991. -------- 1. Prabhu Kumhar, 2. Tileshwar Kumhar, both sons of Somar Kumhar, 3. Jatan Kumhar, 4. Nanhak Kumhar, 5. Dinesh Kumhar, all sons of Prabhu Kumhar, 6. Suresh Kumhar, son of Sukhdeo Kumhar, all residents of village – Sira, P.S. – Atri, District – Gaya …………………. Appellants Versus The State of Bihar ………………….. Respondent ------- For the Appellants : Shree Rakesh Kumar Sinha, Advocate For the State : Shree Ajay Mishra, APP -------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA -------- Dharnidhar Jha, J. Six appellants have preferred the present appeal to question the correctness of judgment dated the 23rd March, 1994 passed by learned Additional Sessions Judge – XI, Gaya in S.T. No. 498 of 1990 / 81 of 1991. By the impugned judgment, while the appellants were acquitted under sections 307/149 IPC, three of them, namely, Prabhu Kumhar, Tileshwar Kumhar and Nanhak Kumhar were convicted under sections 148 and 324 IPC, the remaining three appellants were convicted of offences under sections 147 and 323 IPC. After having heard the appellants on sentence on the same day, appellants Prabhu Kumhar, Tileshwar Kumhar and Nanhak Kumhar 2 were directed to suffer RI for three years under section 324 IPC and were directed to pay a fine of rupees one thousand for their conviction under section 148 IPC and in default of payment of fine, each of them were directed to suffer RI for six months. Remaining three appellants were directed to suffer RI for one year under section 323 IPC and to pay a fine of Rupees five hundred each under section 147 IPC else, to suffer RI for three months. 2. The prosecution case is based on the fardbeyan of P.W. 3 Satyendra Singh, in which he stated that he heard halla coming from northern side of the house of Alakhdeo Singh (not examined on account of being dead) and as such he and his brother Yogendra Singh (P.W. 6) went there and found Alakhdeo Singh surrounded by the accused persons who were armed with lathi, bhala and garasa. When the informant P.W. 3 and his brother P.W. 6 attempted to intervene, Prabhu Kumhar ordered to assault both the witnesses and himself gave a bhala blow to P.W. 6 Yogendra Singh, which hit his right chest, as a result of which he fell down and became unconscious. Appellant Tileshwar Kumhar gave a garasa blow on the head of the informant which he attempted to ward off by raising his hands and as such it caused injuries on his arms. Other remaining appellants assaulted the informant and his brother with lathi. As regards the genesis of the occurrence, it was alleged that the rain water from the house of the informant used to flow through the fields 3 of the accused persons who objected to it on that particular day as earlier also and, the occurrence took place on that account. 3. It appears from the perusal of the judgment that out of a total number of eight witnesses examined, P.W. 1 was formal, P.W. 2 was not believed by the trial court as an eye witness as he was found having arrived at the place of occurrence after the injured had received the injury of assault and were lying on the ground. P.W. 4 was declared hostile by the prosecution whereas P.W. 7 was tendered. P.W. 8 was the doctor who had examined P.Ws 3 and 6, the informant and his brother, both of whom, supported the prosecution story. 4. While recording the conviction, the learned trial judge has recorded the following finding in paragraph 8 : “…….. it is crystal clear that the occurrence between the parties took place and since the witnesses examined in the case stood the test of cross-examination, I do not find any reason completely to disbelieve the prosecution story.” 5. If this could be the finding which could be reached by the learned trial judge in paragraph 8 of the judgment, then the simple question is as to when it was a case of free fight, both the parties being engaged in fight with each other, then could it be a case in which the prosecution could not be held guilty of suppressing the true facts? 4 6. While I was going through the evidence of P.Ws 3 and 6, which was available on lower court records both the witnesses have admitted that there was a counter case and P.W. 3 in paragraph 6 of his evidence has admitted the whole facts as alleged against P.Ws 3 and 6 and others in that counter version and further that during the trial the charges as against P.Ws 3 and 6 and others were held proved and they had been sentenced. P.W. 6 stated that the appeal which was preferred by them was also dismissed by the appellate court. It is not that the proof of charges in the defence version could render the charges framed in the present case not proved, but the fact remains that there was admission from the witnesses of some facts of the counter version and that impliedly was an admission about the occurrence, which was asserted by the defence. P.W. 3 in paragraph 7 of his deposition stated that enmity between the sides was coming from four-five past years and there had not been any case and it was for the first time that the two parties were fighting freely and they were lodging their respective versions. P.W. 3 when cross-examined at page 5 of his recorded deposition, was simply denying that he had seen any injury on the person of any of the accused persons. Likewise, P.W. 6 has also in his evidence denied to have seen any injury on the person of any of the accused persons, but what appears from the evidence of P.W. 6 at page 2 of the recorded deposition, is that he said that he had gone to disengage the fighting parties. Thus, the probability which is raised by the 5 admitted facts both by P.Ws 3 and 6 was that the parties were fighting with each other and as regards the manner of assault on the one side or the other, there could be a simple inference that sides were suppressing the real story. 7. If the witnesses are suppressing the true facts, then on this score alone the court has to reject their testimony. More over, the witnesses are deeply interested, P.W. 3 and P.W. 6 being full brothers and mere presence of some injuries on their persons may not lend credence to their evidence of such class as to exclude the admitted counter version of the case and the other facts, which I have just discussed. 8. Defence does not succeed in getting acquittal because it had proved its version to the hilt. It succeeds only when, by cross- examining the witnesses if it succeeds in introducing certain facts, it creates certain doubt in the prosecution version on account of some improbability occurring in the story told by the witnesses or on account of some admission which may go to the root of the prosecution charges. 9. This appears a case in which the prosecution was not coming out with true version of the case and in that view, it would not have been a fit case in which the learned trial judge should have convicted the appellants and sentenced as has been done by the learned trial judge. In my considered opinion, present is a case in which benefit of doubt ought to have been given to the six appellants 6 and, accordingly, that benefit is credited to them by allowing the present appeal. 10. In the result, the judgment and order of conviction and sentence passed upon the appellants are hereby set aside. They are on bail. They shall stand discharged from their respective bonds. (Dharnidhar Jha, J.) Patna High Court, The 20th May, 2011, NAFR/Anil/