Criminal Appeal (SJ) No. 324 OF 1994 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Digen Rai. 2. Jitu Rai, Both sons of Moharma Rai. 3. Aklu Rai, S/o Digen Rai. 4. Mohna Rai. 5. Sona Rai, Both sons of Sulwa Rai. 6. Abdul Mannan @ Mohd. Mannan, S/o Sk. Skhi @ Shafique 1 to 3 R/o Village-Dhachna and 4 to 6 R/o Village-Manaikhar, All of P.S.-Barsoi, District-Katihar. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants : Mr. Abdul Manan Khan, Adv. For the State : Mr. Ajay Kumar-II, APP. *************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. The appellants have been convicted under Sections 323, 380, 147 and 148 IPC and sentenced to RI for one year by the 2nd Additional Sessions Judge, Katihar by a judgment dated 17.09.1994 in S.Tr. No. 62 of 1993. The case of the prosecution is that in attempt to commit theft the appellants also gave knife and hammer blows on account of which the wife of the informant lost four teeth. Initially the appellants were charged under Section 307/149 IPC but were sentenced as mentioned above. The prosecution examined six witnesses out of whom P.W. 1 is an independent witness but not an eye witness. P.W. 5 and P.W. 6 are the police officers who investigated the case whereas P.W. 4 is the informant and P.W. 3 and P.W. 2 are the wife and son respectively of the informant. P.W. 1 is an independent witness who deposed that a dispute had arisen between the parties on account of 2 plucking of mango fruits a day before the occurrence and the accused persons had been ordered to pay a fine of Rs. 500/- but the appellants refused to pay whereafter the present occurrence took place. However, this witness has not stated anything about the appellant being involved in the present occurrence. The Doctor who had examined P.W. 3 and P.W. 4 has not been examined and in absence of it the appellants were acquitted of the charge under Section 307/149. Since the major part of the prosecution has already been disbelieved by the Court below and none of the articles stolen were recovered from the house or possession of the appellants who reside in the very same village, I am inclined to acquit the appellants. For the reasons mentioned above, in the result the appeal is allowed and the judgment dated 17.09.1994 passed by the 2nd Additional Sessions Judge, Katihar in S.Tr. No. 62 of 1993 is set aside. The appellants are discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 6th April, 2011. NAFR/Vikash/-