Crl.A. 210/2004 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. B.M. Choudhury, learned Counsel appearing for the accu sed appellants. The State is represented by Mr. B.B. Gogoi, learned Addl. Public Prosecutor. 2. This Appeal is presented against the judgment and order dated 30 .7.2004 in Sessions Case No. 304(K)/2001 rendered by the Ad hoc Addl. Sessions Judge, Kamrup, Guwahati, whereby the accused appellants have been convicted unde r Sections 147/448/325/307 of IPC and have been sentenced to undergo R.I. for va rious periods and fine, upon such conviction. 3. According to the prosecution story, on 16.4.2001 at about 7:30 a .m., the accused appellants being armed with ’Lathi’, ’Loru’ (small bamboo stick ) and ’Dao’ trespassed into the house of Mustt. Ayesha Khatoon @ Achia Khatoon with the intention to dispossess her from her homestead land also to beat her up . Seeing the attacking group the victim shut herself inside her house. But the a ccused broke down the house door and beat her up with ’Lathi’, fracturing her r ight arm and causing serious injuries on her person. She was then lifted by the accused and was dumped on the river bank in an unconscious state. 4. The injured victim filed an FIR in the Goraimari Police Outpost which forwarded the same to the Chaygaon Police Station. In the FIR all the 8 ac cused appellants were named and it was stated that the accused by making indiscr iminate ’Lathi’ assault on the victim had broken her right arm. On the basis of the information, the Chaygaon Police Station Case No. 35/2001 was registered an d criminal process was set in motion. 5. After completion of the investigation, the police submitted char ge sheet against all the accused appellants. The trial of the case commenced in the Court of the learned Ad hoc Addl. Sessions Judge, Kamrup, who framed charges under Sections 147/448/325/307 of the IPC. 6. The prosecution examined 7 witnesses and although statement(s) of the accused appellants under Section 313 of Cr.P.C. was recorded, no defence witness was adduced. PROSECUTION EVIDENCE 7.1 P.W.1, Sorhab Ali was away from the village and he did not have any knowledge as to how Ayesha Khatoon received her injuries. 7.2 P.W.2 Mustt. Ayesha Khatoon @ Achia Khatoon was the injured vict im and is the informant in the case. In her deposition, P.W.2 stated that on the day of the incident, while she was alone at home she was beaten up by the accus ed with ’Lathi’ and ’Loru’ and she suffered injuries on her arm and hip. She fai nted in her house and gained her senses only at the hospital. She stated that he r arm was broken in the assault and she had to receive medical attention for sev eral days. 7.3 The P.W.3 Motleb Ali didn’t see the assault. But he deposed that about 100 villagers gathered at the site after the incident. 7.4 Like the P.W.3, Fajal Haque (P.W.4) reached the place of occurre nce only after hearing about the incident. He also saw a gathering of about 100 people at the place, where the injured was found lying. 7.5 P.W.5 Md. Momin Ali also saw the victim Ayesha Khatoon in an inj ured condition and noticed that her left arm was broken. In his cross-examinatio n, he stated that the incident was over by the time he reached the place of occu rrence and that he couldn’t see the persons, who had beaten up Ayesha Khatoon. 7.6 P.W.6 Dr. Omar Ali was the doctor who attended to the injured Ay esha Khatoon at the Alikash State dispensary. He found fracture of the tibia bon e of the left hand of the victim and also found that the injured was suffering t enderness and pain all over her body. He also found bite marks on the back and b oth legs over the injured victim. In his cross-examination, P.W.6 admitted that he is an Ayurvedic doctor and no X-ray of the fracture injury was done. Accordin g to him, the injured was medically treated as an outdoor patient for about a we ek after the incident. 7.7 P.W.7 Tarun Kalita was the Investigation Officer of the case. A s the officer-in-charge of the Goroimari Outpost under Chaygaon Police Station, he received the ejahar from Ayesha Khatoon and after recording the G.D. Entry No . 215 on 16.4.2001, he forwarded the ejahar for registration of the case to the Chaygaon police station. P.W.7 stated that the accused appellants could not be a rrested as they were absconding. 8.1 As can be seen from the evidence in the case, barring the injure d victim (P.W.2), no other witness had seen the actual assault. Although P.W.3, P.W.4 & P.W.5 had seen the victim in injured condition and mentioned about gathe ring of over 100 villagers, no witness was produced to show that it was the appe llants who had assaulted the victim or carried her from her house and dumped her at the river bank. 8.2 What is seen in the present case is that although at least 8 per sons had trespassed into the house of the victim and had assaulted her with ’Lat hi’, ’Loru’ and ’Dao’ , the victim did not suffer any life threatening injuries on her person. Since X-ray on the alleged fracture of the arm of the victim was not done, it can’t also be conclusively accepted that the injury was of grievou s nature. In such circumstances, I am of the view that the Charge under Section 307 IPC and Charge under Section 325 of the IPC can’t be sustained as evidence i s missing to prove the said Charges. 9. Now the question is whether the remaining Charges under Section 448 and 147 of the IPC, can be sustained against the accused appellants. Surpris ingly although the appellants were named in the FIR by the informant, in her dep osition in the Court, the P.W.2 didn’t name any of the accused as the attackers. That apart, P.W.2 did not attribute any specific act against any of the accused appellants. 10. At this point of time it is difficult to comprehend why the inju red victim failed to name any of the accused appellants in her testimony in the Court. But only because she named them in the FIR, it wouldn’t be proper in my v iew to rope them in because the FIR in any case, can’t be treated as substantive evidence. This omission in the testimony of P.W.2 is found to be glaring. 11. Therefore, I am of the considered view that the involvement of t he accused appellants with the assault on the victim in the morning of 16.4.2001 has not been established beyond all the reasonable doubt. Considering that none of the other witnesses had implicated the accused appellants with the assault, I feel that they deserve the benefit of doubt. The Impugned judgment dated 30.7. 2004 in Sessions Case No.304(K)/2001 is accordingly set aside and the Appeal is allowed. As the accused appellants are on bail, their bail bonds are discharged . The LCRs be returned forthwith.