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.
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PRESENT
THE HON’BLE JUSTICE SMT. ANJANA PRAKASH
Anjana The appellant no.1 has been convicted u/s. 307 I.P.C.
Prakash, J:
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.
( Anjana Prakash, J. )
Patna High Court
Dated, 4th April, 2011.
NAFR/ Narendra/