CRIMINAL APPEAL No.410 OF 2010 Against the judgment of conviction and order of sentence dated 30th March, 2010 passed by Shri Subhash Chandra Prasad, Additional District & Sessions Judge, Fast Track Court IInd, Ara in Sessions Trial No. 100 of 2009. **** 1. CHHOTAK TURHA, SON OF CHANDRADEO TURHA 2. PREM MAHTO, SON OF LATE GANESH MAHTO 3. SATYENDRA MAHTO, SON OF SRI BHAGWAN MAHTO ALL RESIDENT OF VILLAGE – KARARI, P.S. – ARA MUFASSIL (DHOBALA O.P.), DISTRICT – BHOJPUR. ------------------------------------------(Appellants) Versus THE STATE OF BIHAR ----------------------------------(Respondents) **** For the Appellants :- Shri Ajay Kumar Thakur, Advocate. Shri Imteyaz Ahmad, Advocate. Shri Amir Alam, Advocate. Shri Ravi Ranjan I, Advocate. For the State :- Shri D. K. Sinha, APP. P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA, J THE HON'BLE MR. JUSTICE GOPAL PRASAD, J. **** S.K. Sharma & Gopal Prasad, J.J. Heard learned counsel for the appellants and learned counsel for the State. The appeal is being disposed of at the stage of 2 admission itself. Considering the facts and circumstances, which are available on the record. The appellants were put on trial before the Additional District & Sessions Judge, Fast Track Court II, District Bhojpur in Sessions Trial No. 100 of 2009 and they have been convicted for offences under Sections 302/34 of the Indian Penal Code and have been sentence to undergo rigorous imprisonment for live. The short facts relating to present appeal are in fardbeyan lodged by P.W. 6 before the Officer In Charge Ara Muffasil (Dhobaha O.P) Police Station alleging therein that on 26th October, 2008 at about 4.30 P.M he was in the saw mill of J.P. Sharma and was sleeping on wooden Choki there. He had taken liquor and was under the influence of the liquor. He was living in the said saw mill. The informant saw that his villagers Satendra Mahto, Chhotak Turha and Prem Mahto came there and awoke his brother Ramun Sharma. There was hot altercation with Ramun Sharma. Prema Mahto and Chhotak Turha told to kill his brother and thereafter Satendra Mahto pick up a piece of wood and assaulted upon his head. His brother got injury on his head and the blood oozed out. He was assaulted by slaps also. The occurrence was witnessed by Manoj Sharma, Yogendra Sharma, Hareram Sharma and Triloki Sharma also. In the next 3 morning i.e. 27.10.2008 fardbeyan was registered under Section 302/34. After investigation charge-sheet was submitted. The case was committed to the court of session the appellants pleaded their innocence. The trial court has relied upon the evidence of PW 1. The learned counsel for the appellants has produced the certified copies of the First Information Report and the depositions of all the witnesses which have been discussed in the fardbeyan. The conviction order has been based merely on the evidence of P.W. 1 who in examination in chief has stated that no occurrence has occurred in his presence. P.W. 6 is the brother of the deceased and he has given the fardbeyan. He has stated that his brother after consuming liquor in the market came to the saw-mill and fell down on the wood log. He has further stated that he got him treated but his brother could not survive and died. Altogether seven witnesses were examined by the prosecution. They were P.W. 1 Yogendra Sharma, P.W. 2 Triloki Sharma, P.W. 3 Manoj Sharma, P.W. 4 Harendra Sharma, P. W. 5 Sunil Sharma, P.W. 6 Chandeshwar Sharma and P.W. 7 Sheo Bachan Singh, the I.O. P.W. 1 has supported the charge in his examination in chief but in his cross examination, he has given complete go bye 4 to the prosecution case stating that the occurrence had not taken place in his presence. P.W. 2 in his evidence has not stated anything in support of the prosecution case rather he has denied that he had made any statement before the police about the appellants having participated in assault upon the deceased. P.W. 3 has stated that he had heard about the death of Ramun Sharma. He has signed on the inquest report of Ramun Sharma which is marked as Ex. 1 and in cross-examination he has denied having seen the occurrence. P.W. 5 has stated that Ramun Sharma has died in the saw mill but his death was on account of the fact that he fell down on a piece of wood. He has denied that the fardbeyan was recorded in presence of his nephew, deceased, Ramun Sharma. P.W. 6 has supported that Ramun Sharma died on the day of Dipawali but he has stated that he died on account of fall on wooden logs. Ex. 1 is the fardbeyan. P.W. 7 is the I.O. of the case who after completing investigation submitted charge sheet. He has stated that he also inspected the P.O., prepared inquest report and sent the dead body for P.M. No doubt the prosecution has examined 7 witnesses but not even one witness has supported any part of the charge against any of the appellant. The appeal is generally admitted because it questions the propriety of the findings recorded on the basis of evidence but in 5 view of the apparent facts available on the record, and the judgment, itself, it appears that admission of the appeal shall be misuse of the time of this Court. The case is of no evidence at all and the appellants should have been acquitted by the trial court itself but instead they have been convicted and they have been compelled to come here for filing of appeal. After scrutinizing the evidence and after having heard counsel for the appellants and the State, we are convinced that the appeal is not fit to be admitted. Accordingly, the judgment of conviction and sentence of the appellants is set aside and the appeal is allowed. The appellants are directed to be released forthwith if not wanted in any other case. The certified copies of the fardbeyan and depositions filed by the appellants shall form part of the record. Patna High Court, Patna Dated April, 2010 Kundan / N.A.F.R. ( Shyam Kishore Sharma, J.) (Gopal Prasad, J.)