Criminal Appeal (SJ) No.258 of 1998 Against the judgment and order of conviction and sentence dated 26. 05. 1998, passed by Shri Baikunth Nath Shahi, 2nd Additional Sessions Judge, Nawadah, in Sessions Trial No. 55 of 1994/55 of 1996. 1. Srikant Singh, son of Rajo Singh. 2. Rajo Singh. 3. Kameshwar Singh. 4. Baleshwar Singh. Sons of Jagarnath Singh. 5. Ramvilas Singh, son of Baleshwar Singh. 6. Bigan Singh, son of Baleshwar Singh. 7. Tanak @ Tanik Singh, son of Yadu Singh. 8. Munak Singh, son of Yadu Singh. 9. Mantu Singh, son of Singheshwar Singh. 10. Tabloo Singh @ Nagendra Kumar @ Nagendra Singh, Son of Ramvilas Singh. All are resident of Village- Barat, P.S. Narhat (Sitamarhi). District- Nawadah. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Yogesh Chand Verma, Senior Advocate. Mr. Shankar Kumar, Advocate. For the informant : Mr. S. N. P. Sinha, Senior Advocate. Mr. Mukesh Kumar, Advocate. For the Respondent State : Mr. Parmeshwar Mehta , A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants, learned counsel for the informant and learned counsel for the State. 2. The appellant no. 1 has been convicted for offence under Section 304 Part II of the Penal Code and has been sentenced to undergo rigorous imprisonment 2 for nine years and rest of the appellants 2 to 10 have been convicted for offence under Section 147 of the Indian Penal Code and further given benefit under Section 360 Cr.P.C. to execute bond of Rs. 2,000/- (Two thousand) each with one surety of the like amount each to maintain peace and to be of good behaviour for a period of one year. 3. The prosecution case as alleged that occurrence took place on 04. 11. 1992 at about 5 P.M. when the informant was irrigating his land by plastic pipe which passes through the field of Rajo Singh, Kameshwar Singh and Baleshwar Singh and there was dispute arose with regard to pipe and it is alleged that accused persons came at the cabin of the informant armed with lathi and Umakant who was arranging his pipe then they apprehended to arrange pipe and tried to assault then Umakant flee away and entered into the cabin then all the accused persons surrounded the cabin and Rajo, Munak, Tanak and Mantu entered into the cabin and take him out and then Srikant Singh assaulted him by lathi on Umakant on his head and back and took away the pipe and took away articles like money, watch 3 etc. then Umakant was taken to hospital and then to P.M.C.H. where succumb to injury. 4. On the basis of Fardbeyan, F.I.R. was lodged. The investigation proceeded, charge sheet submitted. Cognizance taken and case committed to the Court of Sessions. Charge framed. During trial seven persons examined as P.W. 1, 2, 3 and 4 are witnesses who have supported the prosecution case. P.W. 5 is the I.O., P.W. 6 is the Doctor and P.W. 7 is formal witness. 5. The case of the defence is that no occurrence as alleged occurred and this is counter blast to the case filed by the defence and this is a case of case and counter case in which five persons having been injured on the defence side. The defence has also proved Fardbeyan and formal F.I.R. of counter case as well as deposition and injury on the persons of accused in counter case and five persons from the side of defence have also been received injury which has been proved as Ext. D/2. The defence has also proved Ext. A, B, C and D series, which is Fardbeyan and F.I.R. and charge sheet and depositions of the witnesses in counter case. 6. The Trial Court considering the evidence of 4 both parties, he observed that on a comparative analysis of the evidence five persons of accused side shifted to Sadar Hospital, Nawadah, and they were examined by Dr. Shailendra Kumar vide Ext. D/2 and regarding the time of occurrence there is difference of only one hour between the version of the prosecution and the defence and also noticed that there has been free fight from both the parties in which five persons from the side of the accused persons received injury while from the prosecution side only one person injured held that a burden of proving of guilt of the accused is undoubtedly on the prosecution since the prosecution has to prove the guilt of the accused beyond all reasonable doubt and it becomes hardly necessary for the prosecution to explain how and in what circumstances, injuries have been inflicted on the persons of accused and finding overruled the contention of the accused that as prosecution has failed to explain the injuries sustained by the accused in the same occurrence. However, convicted the appellants as stated above. 7. Learned counsel for the appellants however, contended that this is a case of case and counter case 5 and difference of time of occurrence is only one hour, the case of the prosecution party about the occurrence at 5 P.M. and case of other side that occurrence took place at 6 P.M. Both the parties the prosecution party as well as appellants got injured were treated at Sadar Hospital, Nawadah and injury has been found by the doctor at Nawadah, immediately after the occurrence. The said injury report proved by the doctor who has also examined prosecution party marked as Ext. D/2 shows that injured was examined at 7. 30 and age of the injury within six hours, but there is no explanation by the prosecution side how the accused persons received injuries particularly in circumstance when the injury has been proved are not simple and superficial, but several persons received injuries and are grievous injury. 8. Learned counsel for the State and learned counsel for the informant however, contend that prosecution has been able to establish that the injury is on the deceased by lathi and doctor has also proved the injury report by hard and blunt substance and hence prosecution has proved the case. 9. However, taking into respective submissions, 6 prosecution party, though, have adduced four witnesses have supported the prosecution case. However, the case of the defence suggest about counter case and injury on the side of the accused has also proved Fardbeyan, charge sheet and formal F.I.R. as well as deposition which shows there is injury. However, there is no explanation on the side of the prosecution to explain how the injury received by the defence side and injury received by the defence is serious as several injuries shows to be grievous in nature. 10. Hence having regard to the fact that injury on the persons of the defence side not explained and lower court has also found and observed and even noted that it was case of free fight and hence it can well infer that genesis and manner of occurrence has not been established by the prosecution and hence order of conviction and sentence recorded by the lower court is hereby set aside as the prosecution has not been able to prove the charges. Hence the appeal is allowed. Patna High Court, The 23rd August, 2011. NAFR/m.p. ( Gopal Prasad, J.)