Criminal Appeal No.176 OF 1995 (S.J.) [Appeal against the judgment and order dated 26/28.8.1995 passed by the 2nd Additional Sessions Judge, Arrah, Bhojpur in Sessions Trial No.436 of 1990] 1. JAWAHAR SINGH SON OF SHRI GUPTESHWAR SINGH, RESIDENT OF VILLAGER DORIADIH, POLICE STATION TARARI, DISTRICT BHOJPUR 2. LALLI CHAUDHARY SON OF MANU CHAUDHARY, RESIDENT OF VILLAGE , POLICE STATION SANDHAULI, DISTRICT ROHTAS 3. GUPTESHWAR SINGH SON OF GOVIND SINGH, RESIDENT OF VILLAGE DORIADIH, POLICE STATION TARARI, DISTRICT BHOJPUR 4. HARIHAR SINGH SON OF GOVIND SINGH, RESIDENT OF VILLAGE DORIADIH, POLICE STATION TARARI, DISTRICT BHOJPUR ……………….. Appellants Versus THE STATE OF BIHAR ………….. Respondent For the Appellants : Mr. Jitendra Pandey, Advocate For the Respondent : Dr. Indiwar Kumari, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant nos.1 and 2 have been convicted u/ss.307/34, 447 of the Indian Penal Code and 27 of the Arms Act and sentenced to R.I. for seven years, three months and two years respectively, whereas the appellant nos.3 and 4 have been convicted u/s.447 I.P.C. and sentenced to R.I. for a period of three months under the said count by the 2nd Additional Sessions Judge, Arrah, Bhojpur in Sessions Trial No.436 of 1990 by a judgment dated 26/28.8.1995. The prosecution case is that on 23.4.1989 when the informant went to the disputed land after having learnt that it - 2 - was forcibly being taken possession of by the accused and when he protested to the same, the appellant no.1 is said to have fired at the informant, on account of which he sustained injuries as also that appellant no.2 had fired but it missed him and the informant ran to his house and saved himself. During trial the prosecution has examined nine witnesses in all, out of whom, P.W.1, P.W.2, P.W.4 and P.W.6 are eye witnesses, whereas P.W.5 is the informant himself. P.W.3 is the doctor, who examined the informant and P.W.7, P.W.8 and P.W.9 are formal in nature. The Investigating Officer has not been examined in the present case. The doctor, who examined the informant (P.W.5), found simple injuries on his person which were all caused from a distance. Admittedly P.W.1, P.W.2, P.W.4, P.W.5 and P.W.6 belong to the same family and are interested witnesses. Further it appears that there was admitted land dispute between the parties and a Title Suit was pending between them. In absence of the Investigating Officer, who alone could have brought the objective evidence as to whether which party was an aggressor and whether this occurrence had taken place in right of private defence of the property, I am not inclined to accept the prosecution case as having been proved beyond reasonable doubt. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants on - 3 - 26/28.8.1995 passed by the 2nd Additional Sessions Judge, Arrah, Bhojpur in Sessions Trial No.436 of 1990 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 25th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )