1 Criminal Appeal (SJ) No. 340 of 2007 ------- Against the judgment and order of conviction and sentence dated 17.2.2007 passed by Shri Ravi Prakash Dhar Dubey, Additional Sessions Judge, Fast Track Court III, Madhubani in S.T. No. 232 of 2005/139 of 2005 -------- Bipat Ram, son of late Khattar Ram, resident of village – Harine, Police Station – Harlakhi, District - madhubani ……………… Appellant Versus The State of Bihar ……………….. Respondent. -------- For the Appellant : Sarvshri Ajay Kumar Thakur, Nilesh Kumar and Imteyaz Ahmad, Advocates For the State : Shri Ajay Mishra, A.P.P. -------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA ------- Dharnidhar Jha, J. The solitary appellant Bipat Ram was tried in Sessions Trial no. 232 of 2005 / 139 of 2005 by the learned Presiding Officer, Fast Track Court III, Madhubani after being charged under sections 302/34 IPC. By judgment dated 17.2.2007, the appellant was found guilty of committing an offence under section 304 II IPC and was directed to suffer RI for ten years. The appellant appeals to this Court against the judgment of conviction and order of sentence. 2. The prosecution case is contained in Ext. 1, the Fardbeyan of Suresh Ram (P.W. 10) recorded on 7.8.2004 at Harlakhi Primary Health Centre where he was hospitalized in an injured condition for treatment of his injuries. It was stated by him that on 7.8.2004 about 9 A.M. he went to his field where there was a boring jointly sunk by him and his uncle, the present appellant. The son of the present appellant was irrigating his field. After the field of the appellant had been fully irrigated, the informant turned the flow of water into his own field, 2 upon which this appellant and his son Kamlesh, both came with lathi and stopped the water from going into the informant’s field. The informant stated that he was also a co-proprietor of the tube-well and as such they should allow the water to go into his field also so that the paddy plants did not wilt. The two allegedly started abusing and assaulting him with lathi. The informant cried, upon which, his father Rameshwar Ram (P.W. 5) and his brother Ram Chandra Ram as also one Laxman Ram (P.W. 8), who were working in the neighbouring field, rushed to that particular field on which the present appellant and his son assaulted them also with lathi. The deceased Ram Chandra Ram caught hold of the present appellant and separated him upon which accused Kamlesh Ram is said to have given a lathi blow on the head of the deceased Ram Chandra Ram which hit in the middle and the deceased sat down holding his head. In the meanwhile, this appellant is also said to have given another forceful blow with lathi on the head of the deceased, as a result of which he fell down and became unconscious. By that time, many persons who were in different fields engaged in transplanting of paddy, rushed to the place and the two accused persons ran away. The informant P.W. 10 stated that he and his father came to the hospital where they were being treated. 3. On the basis of Ext. 1, the FIR of the case (Ext2) was drawn and investigation was taken up by SI Raj Kumar Singh, who appears not examined by the prosecution. It appears that the injured, Ram Chandra Ram, succumbed to his injuries and post mortem examination was held on 9.8.2004 by P.W. 12 Dr. Subhash Chandra Rai, who found ante mortem lacerated wound on the middle of the skull (junctional part of both parietal bones) of the size 3” x ½” x fracture of bone. On dissection, P.W. 12 found dark blood clots in the sub-dural space of the brain and brain meninges lacerated. Death, in the opinion of P.W. 12, was on account of heamorrhage and shock and caused by above mentioned injury which was possible by hard and blunt substance, such as lathi, within twentyfour hours of holding of the postmortem examination. PW 12 further stated that the injuries above mentioned were sufficient in the ordinary course of nature to cause death. 3 4. The police after closing of the investigation sent up the appellant for trial and the appellant was convicted in the manner as indicated above. 5. In support of the charges, the prosecution examined as many as 12 witnesses, out of whom P.W. 2 Chalitra Ram and P.W. 3 Mahendra Ram were declared hostile whereas P.W. 6 Amresh Kumar Choudhary was a witness of formal character who stated about being acquainted with the writings of SI R.K. Singh on the fardbeyan. P.W. 11 was another formal witness who was tendering evidence on Ext. 2. P.W.1 was the wife of the deceased and, as may appear from her examination-in-chief, she claimed to be an eye witness initially but after her cross-examination in paragraph 3 it appears that she might not be an eye witness to the occurrence as she stated that when she came out of her house on halla wherein she was cooking, she found that her husband was lying injured and unconscious and there was an injury on his head. Thus, P.W. 1 cannot be said to be an eye witness. More over, the cross-examination of P.W. 1 was deferred but she did not appear for further cross examination. So far as other prosecution witnesses are concerned, P.W. 4 Jagdish Ram has stated that it was Kamlesh Ram who gave a lathi blow on the head of Ram Chandra Ram and on account of that, he sat down holding his head whereas this appellant dealt another lathi blow on his head and the deceased fell unconscious. P.W. 5 Rameshwar Ram has also stated the same fact that it was Kamlesh Ram who gave first blow on the head of the deceased and when he had sat down holding his head, this appellant dealt another lathi blow on his head, as a result of which he became injured and he was shifted to Harlathi Hospital. So far as the evidence of P.W. 7 Rekha Devi is concerned, she appears a chance witness. She has stated that she was scrapping grass in one of the fields situated nearby and she saw the quarrel between the parties and during that course, she saw that both Kamlesh and Bipat Ram had dealt lathi blows on the head of the deceased. P.W. 8 Laxmi Ram is named in Fardbeyan and he has also supported the prosecution story in the same manner as has been done by other witnesses, like, P.Ws 5, 6 and 7. P.W. 10 Suresh Ram, the 4 informant, has supported the case in the same manner as it was presented by him in the fardbeyan. 6. Thus, what appears is that as per prosecution story, there are two assailants of the deceased, Kamlesh and this appellant. As per evidence, Kamlesh dealt first blow on the head of the deceased, as a result of which he sat down holding his head and thereafter the appellant Bipat Ram is said to have given another blow on his head, as a result of which the deceased became unconscious. I have already extracted the evidence of P.W. 12, the doctor, who held postmortem examination and as per that evidence, there was a solitary wound, which was the cause of death. 7. It was contended by the learned counsel for the appellant by citing Ram Narayan Vs. State of Punjab AIR 1975 Supreme Court 1727 that where direct evidence is not supported by the expert evidence, the evidence is wanting in most material part of the prosecution case and it could be difficult to convict the accused on such evidence. It was submitted that there was inconsistency between the oral testimony and the evidence of the doctor and that was the most fundamental defect in the prosecution case and in absence of any reasonable explanation, the whole prosecution case was to be discarded. The learned counsel placed reliance also on Mohar Singh & ors. Vs. State of Rajasthan 1980 Suppl. Supreme Court Cases 655. In Mohar Singh also, witnesses examined by the prosecution had named two accused persons and had alleged that they gave lathi blow to the deceased but the postmortem report indicated that there was only one injury on the body of the deceased. Noticing this conflict between the oral and medical evidence, the Supreme Court was acquitting the appellants. 8. It was contended by Shri Ajay Mishra, the learned Additional Public Prosecutor that there is no dispute that the occurrence had taken place in the field for a very petty dispute, i.e., for irrigating the field and there was some assault and the deceased died on that account. As such, the charges were not inappropriate. 5 9. There could not be any doubt that the deceased was assaulted and he died of the injury which was found by P.W. 12. It has categorically been stated by P.W. 12 that meninges of the bone were lacerated and further that there was a fracture of the skull bone. Allegations are also there that the two accused persons including the present appellant and his son Kamlesh Ram dealt blows on the head of the deceased; the first blow being wielded by accused Kamlesh. This is the consistent evidence of all the witnesses who have given eye witness account of the occurrence, but the difficulty is that there was no other injury except the one, which was found by P.W. 2. 10. In that view of the matter, it appears very difficult to find as to who really was the author of that particular injury and, as such, the role of giving the fatal blow cannot be assigned to the present appellant. This is the reason that the appellant has to be acquitted on being extended the benefit of doubt. 11. In the result, the appeal is allowed and the appellant is acquitted of the charge after being given the benefit of doubt. The judgment of conviction passed by the learned trial court upon the appellant is set aside. The appellant is in custody. He shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 27th September, 2011, NAFR/Anil/