Criminal Appeal (SJ) No.399 OF 1994 (Appeal against the Judgment and Order dated 6.12.1994 passed by the Additional Sessions Judge, XII, Patna, in Sessions Trial No. 348 of 1990) 1. BISHNU MAHTO, SON OF BENI MAHTO 2. SHATRUGHAN MAHTO, SON OF JAGDISH MAHTO 3. SURESH MAHTO, SON OF RAKCHAN MAHTO 4. MALA MAHTO, SON OF VISHUN MAHTO 5. SHRAWAN MAHTO, SON OF BAIKUNTH MAHTO 6. BAIKUNT MAHTO, SONOF BEJI MAHTO 7. KRISHNA MAHTO, SON OF VISHUN MAHTO 8. GULI MAHTO, SON OF GOKHUL MAHTO --------APPELLANTS Versus THE STATE OF BIHAR -------RESPONDENT For the Appellants : Mr. Tej Pratap Singh, Advocate. Mr. Kamal Kishore Singh, Advocate. Mr. Harsh Singh, Advocate. For the State : Mr. Matloob Rab, A.P.P. ---------- 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 304/34 of the Indian Penal Code and sentenced to ten years rigorous imprisonment by a Judgment dated 6.12.1994 in Sessions Trial No. 348 of 1990 passed by the Additional Sessions Judge, XII, Patna. The case of the prosecution is that on 4.3.1988 a fight was going on in the family of one Gulli Mahto in which Bhagirath Mahto resisted but in course of altercation, the parties became enraged and a free fight ensued between them on account of which the injured Bishun Mahto died two days later. 2 Initially the case has been instituted under Sections 341, 323, 337 of the Indian Penal Code but charge sheet was also submitted under Section 302 of the Indian Penal Code after the death of Bishun Mahto and charges were framed under Section 302/34 of the Indian Penal Code but the Appellants were acquitted of the charges and convicted as mentioned above. The defence of the Appellants was that there had been a free fight between the parties in course of which the deceased had sustained injuries and the occurrence had taken place in a different manner. During trial, the prosecution examined nine witnesses. PW-9 is the Investigating Officer whereas PWs-1 and 2 are the sons of the deceased Bishun Mahto. PW-7 is the Doctor who examined the injured deceased and PW-8 is the Doctor who held the post mortem examination. The Doctor who examined the injured, initially found smell of alcohol coming from his mouth and deposed that nobody took the patient to PMCH even though he had been referred there. Two eye witnesses are admittedly the sons of the deceased and interested in nature and the independent eye witness did not corroborate the prosecution case. The two independent eye witnesses i.e. PW-3 and PW-4 have in fact, stated that there was free fight between the parties and, therefore, substantially negated the prosecution case. The 3 counter version of the occurrence was brought on record as Maner P.S. Case No. 57 of 1988 which was instituted on the same day whereas the present case was instituted on 5.3.1988 at 7.00 P.M. i.e. a day later. From the evidence brought on record, there is no manner of doubt that in fact, the Appellants through DW-1, DW- 2 have proved the factum of free fight between the parties and the non-explanation of the same by the material witnesses is a serious lacuna in the prosecution case. Under the circumstances, this Court is of the view that the true story of the occurrence has not been brought before the Court by the prosecution and hence the case has not been proved beyond all reasonable doubts. In the result, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Trial No. 348 of 1990 by the Additional Sessions Judge XII, Patna, is hereby set aside. The Appellants are discharged from the liability of their bail bonds. Patna High Court, Patna, Dated, the 8th April, 2011 NAFR/S.ALI ( Anjana Prakash, J.)