Criminal Appeal (SJ) No.305 OF 1994 [Appeal against the judgment and order dated 27.7.1994/28.7.1994 passed by the 1st Additional Sessions Judge, Siwan in Sessions Trial No.306 of 1983] 1. MAHENDRA CHOUDHARY SON OF LATE MOHAR CHOUDHARY 2. SHEOJEE CHOUDHARY SON OF VISHWANATH CHOUDHARY 3. VISHWANATH CHOUDHARY SON OF LATE BRICHHA CHOUDHARY, ALL RESIDENT OF VILLAGE KORARA, P.S. MAIRWA, DISTRICT SIWAN ……………………..Appellants Versus THE STATE OF BIHAR ---------------------- Respondent For the Appellants : Mr. Arun Kumar Singh, Advocate Mr. Rana Vikram Singh, Advocate Mr. Jeetendra Narayan, Advocate For the Respondent : Mr. R.B. Raman Roy, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant no.1 has been convicted u/s. 307 I.P.C. and sentenced to R.I. for 3 year, whereas appellant nos.2 and 3 have bee convicted u/s.324 I.P.C. and sentenced to R.I. for six months by a judgment dated 27.7.1994/28.7.1994 passed by the 1st Additional Sessions Judge, Siwan in Sessions Trial No.306 of 1983. The prosecution case is that a dispute arose between the parties on 11.2.1979 over scattering of manure in the disputed fields in which the appellant no.1 is said to have assaulted Raj Kishore Gosain on the chest, whereas the appellant no.3 is said to have assaulted him with the bhala on his head. During trial the prosecution has examined nine witnesses in all. Out of whom, P.W.9 is formal in nature and P.W.6 is one of - 2 - the injured but tendered and the evidence of P.W.4 has been expunged since he could not turn up for cross-examination, whereas the P.W.7 is the doctor, who examined the injured. P.W.1, P.W.2, P.W.3 and P.W.8 are the material witnesses but close relatives between themselves. The defence of the appellants was that in fact a free fight had ensued between the parties on account of land dispute and there was a counter case which was brought on record vide Exhibit A. From Exhibit A it appears that all the material witnesses are accused in the counter case despite which they have not explained the injuries sustained by the appellants in the same transaction. Considering this major lapse, this Court is of the opinion that the genesis of the occurrence has not been proved by the prosecution beyond all reasonable doubt and in absence of the same the appellants are given benefit of doubt. In the result, this appeal is allowed and the order of conviction and sentence passed against the appellants on 27.7.1994/28.7.1994 passed by the 1st Additional Sessions Judge, Siwan in Sessions Trial No.306 of 1983 is set aside. Patna High Court Dated, 4th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )