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2011 DIGILAW 797 (PAT)

Nirsu Das, S/o Prabhu Das v. State Of Bihar

2011-04-26

ANJANA PRAKASH

body2011
JUDGEMENT Anjana Prakash, J. 1. The Appellants have been convicted under Section 304 Part II IPC and sentenced to RI for five years as also under Sections 147 and 148 IPC and sentenced to RI for one year under each count by the 1st Additional Sessions Judge, Samastipur in S. Tr. No. 94/34 of 1987/89 by a judgment dated 28.08.1995. 2. The case of the prosecution is that when the deceased was sitting in a "Shradh" where the food was being served the accused persons who were sitting there opposed it since he had been declared a outcaste on which an altercation arose between the parties in course of which the deceased was assaulted and while he was being taken to the hospital the next day he died on way. 3. The prosecution in all examined eleven witnesses out of whom P.W. 1, P.W. 2 and P.W.4 are the brothers of the informant. P.W. 7 is the informant himself. P.W. 3, P.W. 6, P.W. 9, P.W. 10 and P.W. 1 are formal in nature. P.W. 8 is the Doctor who found four injuries on the person of the deceased but one injury sustained by him on the head. 4. The defence of the Appellants was that the prosecution story is an afterthought and it was they who had committed the offence of assault on the accused because of the differences between them and the accused persons had also sustained injuries for which Bibhutipur P.S. Case No. 106/86 had been instituted. Evidently the case instituted by the Appellant was prior to one instituted by the prosecution. 5. On going through the evidence of P. Ws. 1, 2, 4 and 7 it is evident that they are all interested and had attempted to conceal the fact that they were accused in their counter-case but had conceded this fact in the cross-examination. I also find that not a single independent witness has been examined who would corroborate the version of the interested witnesses. 6. In the background of the counter-version the prosecution was duty bound to bring on record the evidence of independent witnesses as also examination of Investigating Officer was essential. In absence of the same, I am inclined to give benefit of doubt to the Appellant. 7. In the result, the appeal is allowed and the judgment dated 28.08.1995 passed by the 1st Additional Sessions Judge, Samastipur in S. Tr. In absence of the same, I am inclined to give benefit of doubt to the Appellant. 7. In the result, the appeal is allowed and the judgment dated 28.08.1995 passed by the 1st Additional Sessions Judge, Samastipur in S. Tr. No. 94/34 of 1987/89 is set aside. The Appellants are discharged of the liability of their bail bonds.