Criminal Appeal (SJ) No.105 of 1993 Against the judgment of conviction and order of sentence dated 18th day of March, 1993 and 20th day of March, 1993 passed by 3rd Additional Sessions Judge, Rohtas, Sasaram in Sessions Trial No.58/33 of 1985/88. 1. SHER MOHAMMAD @ SHER MOHAMMAD MIAN, SON OF SATTAR MIAN, 2. SATTAR MIAN, SON OF NIJAN MIAN @ MIYAJAN MIAN, BOTH RESIDENTS OF VILLAGE-TENDUNI, POLICE STATION- BIKRAMGANJ, DISTRICT- ROHTAS.-----------------------Appellants Versus STATE OF BIHAR----------------Respondent -------- For the appellants:- S/Sri Ashok Kumar Mishra, Varun Kumar and Md. Rais, Advocates. For the State:- Sri S.N.Prasad,A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. This appeal was preferred originally by four appellants to challenge judgement dated 18.03.1993 passed by Additional Sessions Judge, Rohtas in Sessions Trial No.58/33 of 1985/88 by which the appellants had been found guilty of committing offences under Sections 304/34 and 323 IPC and each of them was directed to suffer rigorous imprisonment for seven years and six months respectively on the two counts. During the 2 pendency of the appeal, appellants Bitan Mian and Gaffar Mian were reported dead and, as such, their appeals abated as may appear from order passed on 13.05.2010 by this Court. 2. The prosecution case in short was that the husband of the informant, namely, Noor Mohammad Mian(P.W.4)came out of his house to urinate in the night and on seeing him, accused Gafar Mian and Sattar Mian started abusing him and also accused him of throwing stone over the roof of their house. P.W.4 requested not to abuse him as he had just come out of his house to urinate and that he should first get confirmed, upon which all the accused persons started assaulting him with lathi. Mohalla people came to intervene in the assault and diffused the quarrel who ran away towards Tenduni Chowk and did not return in the night as a result of which, the P.W.8 got anxious, As per her story in the FIR, she went to inform her Dewar, Gazar Mian, who came and started enquiring from the accused persons as to the reason for which they had 3 assaulted P.W.4. All the accused persons, thereupon started assaulting the deceased Gazar Mian with Chailas (split piece of wood) as a result of which Gazar Mian fell down unconscious. The informant (P.W.4) attempted to intervene but she was also assaulted and injured. The neighbouring people came and saw the occurrence whereafter, the injured was shifted to a doctor who referred him to P.M.C.H. 3. After investigation of the case by P.W.9, chargesheet was laid before the court for trial which ended in conviction of the four accused persons who had filed the appeal as noted earlier. 4. During the course of the trial, ten witnesses were examined, out of whom P.Ws.2 and 3 were formal in nature, having proved the FIR and the endorsement over the fardbeyan as Exts-1 and 3. P.Ws.1 and 8 were the only eye witnesses whereas P.W.7 Wakil Sharma was simply making an overall statement that an incident of assault had taken place whereafter he went to sleep at his shop. P.Ws.5 and 6 were declared hostile. P.W.10 was the 4 doctor to whom the injured Gazar Mian was shifted in an unconscious state of health. P.W.10 does not state in his evidence that he found any injury externally on the person of Gazar Mian. Gazar Mian died might be true, but there was no evidence before the trial court as to what was the reason to cause death and where did he die and whether the postmortem examination was performed on his dead body or not. 5. As a result, the oral testimony of P.W.1 in paragraph-7 of his cross-examination in which he has stated that when he came, he found accused persons assaulting Gazar Mian with Chailas and simultaneously the ladies of the house of the accused persons were indulged in brick-bating appears not supposed and probabilized by the evidence of P.W.10. It is not clear from the evidence of any of the witnesses including P.W.8 as to whose assault was the real cause of causing unconsciousness of Gazar Mian. There is no specific statement coming from any of the witnesses 5 specially P.Ws.1 and 8 as to who had dealt the blow at which part of the body of Gazar Mian. Initially, there was the story of assaulting Gazar Mian with Chailas, but during the course of the trial the story of giving blows with lathi was added which improvement was never supported even by P.W.10. 6. In order to prove the charges under Section 304 I IPC the prosecution shall have to prove that the accused persons did an act with an intent that the injury which they were likely to inflict upon the deceased was so imminently, dangerously that in all probabilities they must cause death or alternatively the prosecution has to show that the accused persons were fully knowing that the act, in which they were indulging into were so dangerous that it in all probability may cause death. 7. I have just noted down that the evidence is indefinite, there is no specific story of assault alleged against any of the accused persons including the two appellants. There is no 6 evidence coming from any doctor that Gazar Miyan had any injury, least to talk of any injury which was proving fatal subsequently. 8. In that view, it appears simply difficult to uphold the judgment of conviction as was recorded by the learned trial Judge as in the very face of the claim of the prosecution that Gazar Mian was shifted to a hospital from where he was shifted to P.M.C.H., it could safely be assumed that there might have been some injuries on the deceased but the non-production of the evidence in that behalf create a serious doubt in the prosecution case. 9. In that view of the matter, the judgment and order of sentence which were passed against the two appellants could not be sustained. The appeal is allowed. The appellants are acquitted of the charges. They shall stand discharged from the liabilities of their respective bail bonds. Patna High Court, Dated, the 31st day of March, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)