Anjana Prakash, J:

The appellant nos.1 and 2 have been convicted 

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3. The defence of the appellants was that the Palani belonged to the accused persons and it was the prosecution party, who was attempting to take forcible possession of the same, where after a free fight took place in which members of the accused party were assaulted, which resulted in death of one Asharfi Rai later on. For this counter version a First Information Report was instituted initially u/s.307 I.P.C. to which 302 I.P.C. was later added.

4. During trial the prosecution in all examined four witnesses. Out of whom, P.W.1 is the father of the informant and P.W.2 is the informant and both of them are eye witnesses, whereas P.W.3 and P.W.4 are formal witnesses. Neither the Investigating Officer nor the doctor was examined on behalf of the prosecution to substantitate the manner of occurrence.

5. The defence also brought the documents pertaining to the counter version including the fard beyan of Asharfi Rai (later deceased) as Exhibit D and the postmortem examination report in his regard as Exhibit E.

6. On going through the evidence adduced on behalf of the prosecution, I find undisputedly that only two material witnesses have been examined, both of whom are interested and there is no independent corroboration of the prosecution case. In the background of the counter version, which is an admitted position, I am not inclined to place complete reliance on the evidence of these two interested witnesses and, therefore, giving -3- benefit of doubt to all the three appellants, they are acquitted of the charges.

7. The appeal is thus allowed and the order of conviction and sentence passed against the appellants on 27.3.1995 by the 1st Additional Sessions Judge, Saran at Chapra in S.T. No.147 of 1981/ 174 of 1990 is set aside. The appellants are discharged from the liabilities of their bail bonds.

( Anjana Prakash, J. ) Patna High Court Dated, 12th May, 2011.

NAFR/ Narendra/