Criminal Appeal (SJ) No.128 of 1997 [Appeal against the judgment and order dated 29.4.1997 and 30.4.1997 passed by the 3rd Additional Sessions Judge, Saran at Chapra in Sessions Trial No.90 of 1989] 1. Sabha Pati Prasad Son of Bhagwan Prasad 2. Ramesh Prasad 3. Madheshwar Prasad, Both sons of Shabha Pati Prasad 4. Binod Prasad son of Ram Pravesh Prasad, All resident of village Garkha, P.S. Garkha, District Saran …………………….. Appellants Versus The State of Bihar ………….. Respondent For the Appellants : Mr. D.K. Sinha, Senior Advocate Mr. R.B. Roy ‘Raman’, Advocate For the Respondent : Mrs. Madhuri Lata, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant no.4 has been convicted u/s.304 Part I I.P.C. and sentenced to R.I. for ten years, whereas the appellant nos.1, 2 and 3 have been convicted u/s.324/34 I.P.C. and sentenced to R.I. for three years by a judgment dated 29.4.1997 and 30.4.1997 passed by the 3rd Additional Sessions Judge, Saran at Chapra in Sessions Trial No.90 of 1989. 2. The case of the prosecution according to the Kirit Raut (P.W.3) is that on 14.5.1984 the accused persons came to the house of Awadhesh Kumar and started abusing him, at which Awadhesh Kumar protested. Then appellant Binod Prasad assaulted him with fists. In the meantime appellant Sabha Pati Prasad came there armed with bhala and hurled a bhala blow on 2 the informant causing bleeding injury on his left abdomen. Appellant Binod Prasad also brought a lathi from his house and assaulted the informant on his head and left leg. In the mean while Rajendra Prasad Singh, the deceased, came to intervene, at which all the four appellants assaulted him with lathi, fists and slaps causing injury on his left temporal region. Three days later Rajendra Prasad Singh died, on account of which Section 302 I.P.C. was added to the case. The appellants were also charged u/s.302/34, but they were acquitted of the charges and were convicted as mentioned above. 3. During trial the prosecution has examined eight witnesses. Out of whom, P.W.2 Vidyanand Singh and P.W.4 Sudarshan Singh have been declared hostile, whereas P.W.8 has supported the case of the prosecution as a hearsay witness. Out of the eye witnesses P.W.1 Subhash Singh, P.W.3 Kirit Raut and P.W.5 Awadhesh Kumar Singh have fully supported the case of the prosecution. P.W.7 Rajdeo Singh is the Investigating Officer, whereas P.W.6, the Compounder of the doctor, who held postmortem examination, has been examined in his absence. 4. The defence also brought on record the evidence of D.W.1 to prove the injured indoor register of Sadar Hospital vide Exhibit A to show that there was a counter occurrence and the accused were also injured. 5. I find from the evidence of P.W.1, P.W.3 and P.W.5 that they have stated in court that on the alleged date and hour of occurrence appellants Madheshwar Prasad and Ramesh Prasad 3 assaulted Awadhesh Kumar by means of fists and slaps, at which Kirit Raut, the informant, intervened but he was also assaulted by Madheshwar Prasad and Ramesh Prasad by means of lathi, whereas appellant Sabha Pati Prasad gave bhala blow on his abdomen and Binod Prasad gave bhala blow on his head and left leg. When Rajendra Prasad Singh, the deceased, attempted to intervene, appellants Ramesh Prasad and Madheshwar Prasad assaulted him with lathi and when he fell down, appellant Binod Prasad assaulted him with a blow on his left temporal region. However, their attention was drawn to the earlier statement that they have not stated the fact that appellant Binod Prasad had assaulted the deceased with a bhala on his head. In the absence of the examination of the doctor, who alone could have given an opinion about the cause of death, the injury report which has been brought on record by the prosecution has no meaning. Further I also find from the evidence of the Investigating Officer that during investigation he learnt that the said incident of assault had taken place on account of the fact that Kirit Raut, the informant, who was the son-in-law of the village and was living there for the last 15-20 years was claiming half portion of the Dalan of appellant Sabha Pati Prasad and when they were not inclined to part with the same this occurrence took place. Evidently the appellants had indulged in the present occurrence while asserting the right of defence of private property. Further the three relevant eye witnesses i.e. P.W.1, P.W.3 and P.W.5 are completely silent on the point of injury having been sustained by the accused persons, even 4 though the factum of counter case i.e. G.R. case No.984 of 1984 Trial case No.460 of 1988 could not be disputed and is an admitted position. Evidently the prosecution had suppressed the true version and, therefore, the testimony of the witnesses becomes highly suspicious. 6. In the background of land litigation and a counter case the manner of occurrence as developed during trial the prosecution case is not fit to be relied upon. 7. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants on 29.4.1997 and 30.4.1997 by the 3rd Additional Sessions Judge, Saran at Chapra in Sessions Trial No.90 of 1989 is set aside. The appellants are discharged from the liabilities of their bail bonds. Patna High Court Dated, 15th July, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )