1 Criminal Appeal No. 234 of 1993 (SJ) *** Against the judgment and order dated 22.7.1993 passed by Sri Abhijit Sinha, IXth Additional Sessions Judge,Bhojpur at Ara,in Sessions Trial No. 432 of 1985. *** 1. Rameshwar Yadav @ Ram Ishwar Yadav, 2. Sulekhani Devi & 3. Gaitri Devi …….. Appellants Versus The State of Bihar …….. Respondents *** For the appellants: Dr. Vidya Nand Kumar & Mr. Parmanand Prasad, Advocates For the State : Mr. Nand Kishore Prasad, A.P.P. *** P R E S E N T HON’BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM *** S.M.M.Alam,J. This criminal appeal is directed against the judgment dated 22nd July, 1993, passed by Sri Abhijit Sinha, 9th Additional Sessions Judge, Bhojpur, Ara, in Sessions Trial No.432 of 1985 whereby and whereunder he has been pleased to convict all the three appellants under sections 323 and 452 of the Indian Penal Code and sentenced appellant no.1 Rameshwar Yadav @ Ram Ishwar Yadav to undergo R.I. for four months under section 323 of the Indian Penal Code and R.I. for one year under section 452 of the Indian Penal Code. However, learned Additional Sessions Judge gave benefit of section 360 of the Indian Penal Code to appellant no.2 Sulekhani Devi and appellant no.3 Gaitri Devi and ordered that both the appellants shall 2 be released on probation of good conduct on executing a bond with two sureties to keep peace and be of good behaviour for two years and in the event of violating any condition of the bonds to appear and receive the sentence as and when called upon. 2. The prosecution case, as per the fard bayan of the informant Sonamati Devi recorded on 4.6.85 at 9.00 AM, in brief, is that on 3.6.85 at about 5 PM while informant’s son Munna was playing, an altercation took place between him and Gayatri Devi, daughter of appellant no.1 Rameshwar Yadav and it is said that the said Gayatri Devi (appellant no.3) slapped Munna Sao, who went to his house weeping. Thereafter, the informant went to the house of appellant Rameshwar Yadav and lodged protest with the mother of Gayatri Devi with regard to the incident. It is further said that at about 8 PM while the informant along with her son were taking meals all the three appellants armed with Lathi came to the house of the informant and started assaulting the informant with lathi. There is specific allegation that appellant Rameshwar Yadav gave 2-3 lathi blows on the informant’s neck and back, Sulekhani Devi assaulted her with fists and slaps on the abdomen and private parts of the informant, as a result of which, blood started oozing out from the private part of the informant and the three months’ pregnancy was aborted. There is further allegation that appellant no.3 Gayatri Devi hit the informant on her head with Chappal and snatched three golden juitias from her neck. They also assaulted the informant’s son Munna Sao with fists and slaps. It is further said that appellant no.2 Sulekhani Devi 3 snatched golden Sikri from the neck of the informant’s son and thereafter all the three appellants fled away. The witnesses, namely, Dharmadeo Singh (P.W.3), Mahendar Singh (P.W.7) and Rajendra Singh (P.W.2) and several others saw the occurrence. It has been stated that on the alleged night the informant’s husband was not present at his house and, as such, incident was reported on the next date after return of her husband. 3. On the basis of the above fard bayan of the informant Udwantngar P.S. case no. 75/85 was instituted under sections 452, 307, 323, 379/34 of the Indian Penal Code and investigation was handed over to S.I. Ganesh Prasad Singh, who after completing the investigation of the case submitted charge sheet against the appellants under sections 452, 307, 323, 379/34 of the Indian Penal Code on the basis of which cognizance was taken and the appellants were committed to the court of Sessions. Thereafter, all the three appellants were jointly charged under section 323 and 452 of the Indian Penal Code, whereas, appellant Sulekhani Devi and Gayatri Devi were further charged under section 379 of the Indian Penal Code. Likewise, Sulekhani Devi was also charged under section 307 of the Indian Penal Code. However, the learned trial court did not find the appellants guilty under sections 379 and 307 of the Indian Penal Code and as such the trial court convicted all the three appellants under sections 323 and 452 of the Indian Penal Code by the impugned judgment against which this appeal has been preferred. 4 4. It has been submitted by the learned advocate of the appellants that the trial court has committed error both in law and on fact in arriving at the conclusion that the appellants are guilty. He submitted that the record will show that in this case the prosecution had examined altogether seven witnesses out of whom P.W.2 Rajender Singh was declared hostile and P.W.6 Ramadhar Singh and P.W.7 Mahender Singh did not utter any word with regard to the prosecution case as they were tendered for cross-examination. He further submitted that P.W.3(Dharamdeo Singh), who has appeared as eye witness of the occurrence, did not stand to the test of his cross- examination and in cross-examination he deposed at para 8 that when he reached the place of occurrence he did not find any person present there except the informant and her son. He further submitted that this statement of P.W.3 shows that he has falsely deposed that he had seen the occurrence. With regard to the other evidence, learned advocate submitted that admittedly P.W.5 (Sheo Mohan Sao), the husband of the informant is a hearsay witness and at the time of alleged occurrence he was not present at the place of occurrence and he was out of station. Thus, there remains the evidence of P.W.1 and 4. Regarding the evidence of P.W.1 (Sonamukhi Devi) and P.W.4 (Munna Sao), learned advocate submitted that their evidence did not find corroboration from any other source as neither the injury report was brought on record nor any doctor, who had examined the injuries of the above mentioned persons, was examined as prosecution witness. Learned advocate further submitted that the settled law is that 5 the benefit of doubt should have been given to the accused persons and in absence of injury report of both the injured as also in absence of examination of the doctor the trial court should have held that that the alleged incident of assault is very doubtful and the benefit of doubt should go to the accused but instead of that the trial court given the benefit of doubt to the prosecution which is against the settled principles of law. Learned advocate further submitted that even the FIR which is the basis of the prosecution case was not brought on record and in absence of FIR it is difficult to hold which prosecution case was being supported by the prosecution witnesses. Learned advocate further submitted that non-examination of the I.O. has also caused much prejudice to the defence. 5. In view of the submission of learned advocate of the appellants, I have closely scrutinized the judgment of the trial court and I have no hesitation to hold that the judgment of the trial court is not in according with law as the benefit of doubt, which should go to the accused-appellants as per the settled law, has been given to the prosecution by the learned trial court. Curiously enough, the trial court disbelieved one part of the incident i.e. snatching of golden chain and juitias from the possession of the informant and her son but believed other parts of the occurrence i.e. assault without any supporting evidence of doctor or injury report. It further transpires that P.W.2 Rajender Singh, who appears to be independent witness, did not support the prosecution case. Likewise, P.W.6 and 7 have not stated any thing with regard to the alleged offence. Regarding the 6 independent witness i.e. Dharamdeo Singh (P.W.3), I have already stated that para 8 of his deposition shows that he is not an eye witness of the occurrence and he has come to support the prosecution case falsely. In such view of the matter, I am of the view that the judgment of conviction and sentence passed against the appellants can not be sustained. 6. In the result, this Cr. Appeal is hereby allowed and the judgment and order of conviction and sentence dated 22nd July, 1993, passed against the appellants in Sessions Trial No.432 of 1985 are hereby set aside and all the three appellants are acquitted of the charge under sections 452 and 323 of the Indian Penal Code. The appellants are on bail and, as such, they are discharged from the liabilities of the bail bonds. (Syed Md. Mahfooz Alam,J.) Patna High Court Patna Dated the 3rd July, 2008 NAFR/ JA/-