Criminal Appeal No.180 OF 1995 (S.J.) [Appeal against the judgment and order dated 25.8.1995 passed by the 2nd Additional Sessions Judge, Saran at Chapra in Sessions Trial No.108 of 1985/ 137 of 1986] RAJ KISHORE RAI, SON OF SHWDHAJAN RAI, RESIDENT OF VILLAGE BALUANPUR, P.S. JALALPUR, DISTRICT SARAN ……………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent For the Appellant : Mr. Hari Shankar Roy, Advocate For the Respondent : Mr. J.K. Singh No.1, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/s.307 I.P.C. and 27 of the Arms Act and sentenced to R.I. for five years and three years respectively by the 2nd Additional Sessions Judge, Saran at Chapra in Sessions Trial No.108 of 1985/ 137 of 1986 by a judgment dated 25.8.1995. The case of the prosecution is that on 13.4.1984 while the informant was talking with his son at his Darwaja, the accused persons came there and out of which co-accused Sheo Dhyan Rai (since dead) gave orders to kill and also assaulted the informant with lathi and others assaulted his son with lathies. Thereafter Baijnath Rai and Ramdeo Rai were also shot at by the appellant. The defence of the appellant was that on the date of occurrence the prosecution party variously armed started demolishing the roof of Mosmat Fuljhariya Devi and when a - 2 - protest was raised by the accused persons they were assaulted with lathi and bhala. For this occurrence Chapra Mufassil P.S. case No.117 of 1984 was instituted. During trial the prosecution has examined eight witnesses on its behalf. Out of whom, P.W.5 is the informant, whereas P.W.1 is his son. P.W.3 and p.W.4 are the brothers of the informant and P.W.2 is a witness on the factum of occurrence. P.W.6 is the doctor, who examined the two injured and P.W.8 is the doctor, who conducted X-ray of the left hand of injured Ramdeo Rai. P.W.7 is the Investigating Officer. The defence also proved Exhibit A, A/1 and A/2 which are the injury reports of Lakhiya Devi and Sheo Pujan Rai as well as Exhibit 2, which is the fard beyan of the counter case and Exhibit C which is the formal F.I.R. The doctor (P.W.6), who examined injured Ramdeo Rai, found four injuries on his person, some of which were caused by fire arm and some by hard and blunt substance but only injury no.1 was grievous in nature, which was on the metacarpal bone of the left index finger. On the person of Baijnath Rai he found two injuries caused by fire arm but they were all simple in nature. The injuries found on the person of Homu Prasad were five in number but mainly all of them on non-vital parts and simple in nature. P.W.8, who X-rayed Ramdeo Rai, found a single pellet on the second finger which had caused fracture. The injuries on the abdomen were also found to have been caused by multiple - 3 - pellets. From the evidence of the witnesses, it appears that the parties belong to a common ancestor and there was a dispute for land between them. All of them have categorically denied the factum of the counter case and on recall they all admitted that the matter has now been compromised between them. In view of the relationship between the parties, the previous dispute as also the fact that they failed to explain the injuries on the person of the accused, I am not inclined to accept the prosecution case as having been proved beyond all reasonable doubt. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellant on 25.8.1995 passed by the 2nd Additional Sessions Judge, Saran at Chapra in Sessions Trial No.108 of 1985/ 137 of 1986 is set aside. The appellant is discharged from the liability of his bail bonds. Patna High Court Dated, 28th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )