CRIMINAL APPEAL No.315 OF 1993 Against the judgment and order, dated 22.9.1992/24.9.1993 passed by Shri Diwakar Jha, Ist Additional Sessions Judge, Bhabua in Sessions Trial No. 430/8 of 1986/1990. … Vir Bahadur Singh, son of Markandey Singh, village Nonar, PS Ramgarh, District Bhabua - - - - - - - - - - - - - - - - - - - - - - - - - - - - Appellant. Vs. The State of Bihar. For the appellant : N o n e. For the S t a t e : Mr. S. N. Prasad, Additional P. P. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S. A. Khan, J. The sole appellant has been convicted under section 307 of the Penal Code and sentenced to undergo rigorous imprisonment for ten years with fine of Rs. 2000/- and in default of payment of fine to undergo six months’ rigorous imprisonment. 2. One Samudri Devi instituted the case on 6.11.1985 at 7 PM alleging therein that she was guarding a boring on 2.11.1985 when at about 10 PM Vir Bahadur Singh, accused appellant along with some others came armed with Lathi and assaulted her. It is alleged that the appellant gave a lathi blow on her head, whereas others assaulted her on different parts of the body. It is also alleged that one unknown miscreant tried to press her neck. She claimed that she fainted when the miscreants fled away. When she regained consciousness, she raised hue and cry as a result of which several villagers assembled at the spot who took her to Ramgarh where she was under the treatment of Dr. Jai Kumar Singh. Later she was taken 2 to the Government Hospital for treatment. 3. On the basis of the aforesaid F.I.R. investigation proceeded and the trial was conducted. At this stage, it may be pointed out that Samudri Devi died before the trial was taken up and as such the actual factum of the occurrence has to be tested keeping in view the fact that the informant is not present to support her statements in the F.I.R. 4. The prosecution in order to prove its case has examined three witnesses, namely, Rajbansh Singh, PW 1, Purshottam Yadav PW 2, and Mahendra Singh PW 3. PW 1 Rajbansh Singh claims that he was trying to locate his buffalo which was lost and in this context he met the appellant Vijay Singh, Ram Awadh Singh and Radha Singh. On meeting them, PW 1 is said to have questioned them as to what they were doing in the field. PW 1 was told to mind his own business. After some time he heard the sound of groaning and when he went near the hut of Sudama Devi, she was found lying on the ground in an injured condition. On raising hue and cry others came and she was taken for treatment to the doctor. This witness has also stated that Sudama Devi was the wife of Darbari Singh. PW 2 who was with PW 1 has given a similar statement. This statement of PW 2 is contrary to the statement made by PW 1 at paragraph 6 in which he says that they found their missing buffalo at about 1 AM. Both these witnesses are hearsay witnesses inasmuch as they have stated that they were told by the informant that she was assaulted by Vir Bahadur Singh and some unknown miscreants. The appellant does not deny that an occurrence 3 had taken place but denies his participation in the occurrence. 5. PW 3 is one Mahendra Singh who has stated that he came when he heard “hulla” and found Sudama Devi in an injured condition. PW 3 states that Sudama Devi had no son and she used to live with her two nephews in their house. This witness does not disclose the name of the miscreants who had assaulted Sudama Devi although he was one of the persons who had carried Sudama Devi to the doctor for treatment. 6. It appears from the evidence led by PWs 1, 2 and 3 that an occurrence had taken place in which Sudama Devi was injured. However, this court has to test whether the appellant was one of the person who could be held responsible for the said assault. The informant died and was, therefore, not present to give her evidence in court. The family members of Sudama Devi i.e. her husband Darbari Singh and nephews Suresh and Raj Narain have also not come forward to support the involvement of the appellant in the said occurrence. It would be expected that even if they were not eye witnesses to the occurrence, they would have deposed with respect to the incident that had taken place. It can also be presumed that Sudama Devi in her life time or during her treatment would have disclosed the name of the persons who had assaulted her to her close family members. From the records it appears that none of the family members have been examined by the Investigating Officer, much less, have they come forward to support the prosecution version as recorded by the Investigating Officer in respect of involvement of the appellant. On the 4 other hand, the Investigating Officer who was examined as PW 5 has merely stated that he found injuries on the person of Sudama Devi and has recorded the F.I.R. and examined PWs 1, 2 and 3 during investigation. 7. Another fact which would be relevant while considering the involvement of the appellant is the motive behind the occurrence. None of the witnesses have revealed that the appellant had any motive to commit the offence in question. Literally no investigation has taken place regarding this aspect of the matter which would have thrown some light and helped the court to arrive at a finding with respect to involvement of the accused. 8. Therefore the question before this court is whether on the basis of the evidence of PWs 1 and 2 this court could reach to a conclusion that there is sufficient evidence to convict the appellant for the offences under sections 307 and 325 of the Penal Code. The answer has to be in the negative. The reasons are that the story revealed by PWs 1 and 2 regarding their presence near about the place of occurrence at about 10 and 11 in the night seems to be unbelievable. The reasons disclosed by them is that they were looking for their lost buffalo also seems to be unbelievable in view of the fact that it is not expected that one would go 2 to 3 KMs away from their village at such a late hour to look for a missing buffalo. Even if this court accepts that PWs 1 and 2 were looking for their buffalo, then the statement of the two witnesses contradicts each other with respect to this aspect of the matter and creates doubt regarding the reasons of their presence at the 5 place of occurrence. The fact remains that the lady in question has named Vir Bahadur Singh, the appellant. 9. It is submitted on behalf of the appellant that he is highly prejudiced by the fact that he could not test and cross examine the statement and the allegations made by the informant specially in view of the fact that there is no eye witness to the occurrence and the family members have not come forward to support the statements made by Sudama Devi which throws doubt with respect to the involvement of the appellant in the occurrence. 10. Considering the evidence and for the reasons stated above, this court finds that the prosecution has not been able to prove its case beyond doubt that the appellant was involved in the occurrence and as such the appellant has to be acquitted of the charges levelled against him. 11. Accordingly the impugned judgment and order of conviction and sentence passed against the appellant is hereby set aside and he is discharged from the liability of bail bonds. 12. In the result, this appeal is allowed. Patna High Court, September 2, 2009, N.A.F.R. / haque. (Sheema Ali Khan, J.)