Criminal Appeal (SJ) No. 33 OF 1994 ******** Against the judgment and order of conviction dated 4.2.1994 passed in Sessions Trial No. 344 of 1982 by the learned Additional Sessions Judge-II, Patna. ****** 1. RAM SEWAK YADAV S/O ANANT YADAV 2. RAM NANDAN YADAV S/O BHAJAN YADAV 3. DEOKI YADAV S/O RAPET YADAV. ……..….. Appellants Versus THE STATE OF BIHAR …..………. Respondent ************ For the Appellant : Mr. Ashwini Kumar Sinha Adv. For the State : Mr. Ajay Kumar APP. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********* Anjana Prakash, J. The appellants have been convicted under Section 304 Part II read with 34 I.P.C. and Section 148 I.P.C. and sentenced to rigorous imprisonment for 7 years and one year respectively by the learned Additional Sessions Judge-II, Patna in Sessions Trial No. 344 of 1982 by the judgment dated 4.2.1994. 2. The case of the prosecution is that on 13.3.1979 the accused persons variously armed came to the village of the informant P.W.5 and Ram Sewak Yadav dealt Bhala blow on Jagat Prasad while Ragho Prasad sustained gun shot injuries at the hands of Deoki Yadav and Ramanand Yadav gave lathi blow on them. Jagat Prasad was seriously injured and shifted to P.M.C.H. where he died later. 3. Initially charges were framed under Section 302 and 302/149 but the appellants were convicted as mentioned above. The prosecution in all examined eight witnesses out of whom P.W.1, 2, 3 & 4 deposed as witnesses whereas P.W.5 is hear say and P.W. 6, 7 and 8 are formal in nature. Neither the doctor who conducted the post mortem examination or examined the injured was examined nor was the Investigating Officer examined on behalf of the prosecution. In effect, therefore, there is only oral evidence with regard to either the injuries sustained by Chandrika Prasad and Ragho Prasad or death having been caused of Jagat Prasad on account of assault meted out by the accused persons. It also appears that P.W.4 Ragho Prasad was not examined by the police for about 4 days which is noted in the judgment of the Trial Court nor was he medically examined. P.W. 1, 2 and 3 have stated that the police had visited the village after 4 days of the occurrence. 4. The two versions of Chandrika Prasad appear to be materially different from each other and the fard bayan exhibit-1 gives the impression that it is a result of deliberation and concoction. There is material contradiction in the evidence of P.W.1, 2, 4 P.W. 1& 2 have given a totally different manner and genesis of occurrence as that given by the informant. 5. The defence witnesses examined on behalf of the defence further dented the prosecution case to the effect that there is no custom of throwing burning stick in the adjoining village during ceremony of Holi. The motive which has been alleged by the prosecution therefore, becomes highly suspect. 6. In view of such, the appeal is allowed and the order of conviction and sentence passed against the appellants by the learned Additional Sessions Judge-II, Patna in Sessions Trial No. 344 of 1982 by the judgment dated 4.2.1994 are hereby set aside and they are acquitted of their respective charges. The appellants are discharged for the liabilities from their respective bail bonds. Patna High Court, ` ( Anjana Prakash, J. ) Patna Dated the 19th April, 2011 NAFR/ Fahad.