The prosecution failed to prove its case beyond reasonable doubt due to contradictions and lack of independent witnesses, leading to the acquittal of the appellants.

JUDGMENT :

RAMESH CHAND MALVIYA, J.

1. Heard Mr. Baxi S.R.P. Sinha, learned counsel for the appellants assisted by Mr. Brajesh Prasad Gupta, Advocate and Mr. Rahul Nath, Advocate and Mr. A.M.P. Mehta, learned counsel for the State.

2. The present appeal has been filed under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the judgment of conviction dated 20.12.2011 and order of sentence dated 22.12.2011 passed in Sessions Trial Case No. 195 of 2006/433 of 2006 arising out of Bihiya P.S. Case No. 171 of 2005 passed by the learned Additional Sessions Judge-I, Bhojpur, Ara, whereby and where-under the appellant has been convicted for the offence punishable under Sections 304/149 of the Indian Penal Code (hereinafter referred as ‘IPC’) and had been sentenced to undergo rigorous imprisonment for 7 years under Sections 304/149 of the IPC along with fine of Rs. 5,000 and on non-payment of fine further sentenced to one-month rigorous imprisonment.

3. As per the prosecution story, the informant recorded his fardbeyan on 23.12.2005 at about 7.00 am, the informant got information that Jagmohan Yadav, the accused, was digging the foundation by laying bricks in spite of the Panchayat. The informant was sitting at the well in front of Shivrati Yadav's house when at 6.30 pm Jagmohan Yadav, Moshi Yadav called the informant to the foundation land. The informant said to Jagmohan Yadav and Moshi Yadav that yesterday you people had agreed in the Panchayat, why are you getting the work done today. On this Jagmohan Yadav and Moshi Yadav got angry and said that they will get it done from there, let them do whatever they want to do. At the same time, the informant's brother Vishwanath Singh came. When the informant and Vishwanath Singh stopped the accused from digging the foundation, Jagmohan Yadav, Manshi Yadav, Rajnath Yadav, Lalpati Yadav, Ramapati, Nandji Yadav and Laldev Yadav all together started throwing bricks, in which the half of the brick hit Vishwanath Singh's head, due to which his head got broken and Vishwanath Singh fell down on the spot. He died while being taken for treatment.

4. Further on the basis of fardbeyan of informant, a formal FIR was registered in which is marked as ext. 4 and the investigating officer, while continuing the investigation against accused Lalpati Yadav in charge-sheet number- 70 of 2006, submitted chargesheet against other 6 co- accused, on the basis of which learned Chief Judicial Magistrate took cognizance against 6 co-accused on dated 03.05.2006 and the case of other accused except accused Lalpati Yadav was committed to the Court of Sessions on dated 22.05.2006, which was registered as Sessions Case No. 195 of 2006. Supplementary charge-sheet number-133 of 2006 was submitted by the investigating officer against the accused Lalpati Yadav and on the basis of that, the learned Chief Judicial Magistrate took cognizance against him on 16.09.2006 and on 18.09.2006 the case was committed to the Court of Sessions which was registered as Sessions Case No. 433 of 2006.

5. On behalf of prosecution altogether 6 witnesses were examined to substantiate the charges levelled against the appellant, who are namely, PW-1 Pappu Kumar Singh, PW-2 Ramchandra Singh, PW-3 Ram Naresh Singh, PW-4 Vinod Kumar Singh, PW-5 Muran Ram and PW-6 Surya Shekhar Lal. No one has been examined on behalf of the accused/appellants.

6. PW-1 Pappu Kumar Singh in his examination- in-chief stated that occurrence is of 23.12.2005 at about 08:30 am. He further stated that he was at his land and saw that all the accused persons were a