IN THE HIGH COURT OF JUDICATURE AT PATNA ***** Criminal Appeal (DB) No.389 of 2005 ***** Against the judgment of conviction and order of sentence dated 03rd June of 2005, passed in Sessions Trial No. 317 of 1997 by learned 7th Additional Sessions Judge, Muzaffarpur. Ramadhar Mahto, Son of Phudeni Mahto, Resident of Village- Dawaria Kothi Kahaar Toli, P.S.-Dewaria, District-Muzaffarpur. .... .... Appellant. Versus The State of Bihar .... .... Respondent. Appearance : For the Appellant : Mr. Ranbir Singh, Advocate, Amicus Curiae. For the Respondent : Mr. Ashwini Kumar Sinha, APP. CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN S.K. Sharma, J. On call nobody has appeared on behalf of the incarcerated appellant. In order to expedite the disposal Shri Ranbir Singh, Advocate has been appointed as Amicus Curiae to assist the Court on behalf of the appellant. Copy of the brief has been handed over to him. This appeal is being passed over and it shall be taken after lunch. 2. This appeal is on behalf of appellant Ramadhar Mahto against the judgment of conviction and order of sentence dated 3rd of June, 2005 in Sessions Trial No. 317 of 1997 passed by the Second learned Additional Sessions Judge, Muzaffarpur Patna High Court CR. APP (DB) No.389 of 2005 dt.09-09-2011 2 holding the appellant guilty under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life. 3. Self-statement of Sub-Inspector Md. Mustafa, P.W.1 related to an occurrence dated 16th December, 1996. At that time the Sub-Inspector of Police was on patrolling duty. When he reached near Deoriya Kothi then he found some persons were present there. The persons present there told the informant that one person was picking up Cauliflower and suddenly Ramadhar Mahto gave him a Fasuli blow which caused his death. Ramadhar Mahto confessed his offence and so the First Information Report was registered against the sole accused vide Piro P.S. Case No. 250 of 1996 dated 17.12.1996. The First Information Report registered on 17.12.1996 was sent to the court on 19.12.1996. After investigation, charge sheet was submitted, cognizance was taken and the case was committed to the court of Sessions where charge against the accused was explained. The accused pleaded innocence and hence the trial proceeded. Patna High Court CR. APP (DB) No.389 of 2005 dt.09-09-2011 3 4. The prosecution in support of his case has examined only one witness who is the informant. Neither doctor nor investigating officer was examined. According to the informant he was on patrolling duty along with his some officials who have been named in the First Information Report itself. Their non- examination is more fatal because their identity has known and their presence is alleged by the informant himself. Therefore, their non-examination gives fatal blow to the prosecution version. When the persons who were present at the time of arrival of the informant were not examined then adverse inference has to be drawn against prosecution. The post-mortem report has been formally proved as Ext.3. 5. The defence of the accused was of innocence and of false implication and also that the accused has never confessed his crime before the informant or any other person. 6. The informant in his evidence has stated that he was on patrolling duty and when he reached near Deoriya Kothi, then Patna High Court CR. APP (DB) No.389 of 2005 dt.09-09-2011 4 he saw 3-4 persons were assembled on the road. One person was overpowered and caught, he disclosed that one person was picking cauliflower and he (accused) Ramadhar Mahto suddenly gave Fasuli blow to him which caused his death. The aforesaid is the only evidence which has been brought on record by the prosecution. 7. The case is solely relying upon extra judicial confession of the accused before police. The extra judicial confession has been retracted subsequently, by the accused which is apparent from his statement recorded under Section 313 of the Code of Criminal Procedure wherein he strictly denied that he has given any confession. 8. The post-mortem report reveals that Shambhu Singh had one penetratring injury with clear cut margin of 1”x ¼” on the lower part of the chest, therefore, the deceased was having one anti-mortem injury that was upon the left side of the neck and upper part of the chest. 9. The alleged confession before police was that the assault was at two places that (I) neck and (II) buttock. None Patna High Court CR. APP (DB) No.389 of 2005 dt.09-09-2011 5 of the injuries which has been found by the post-mortem confirmed the injuries which has been mentioned in the alleged confession/statement which has led to the registration of the First Information Report. Not only that the prosecution case is that the injury was by sickle but the doctor has found injury to be penetrating and this injury cannot be caused by sickle. There is no witness of the occurrence. The witnesses who ought to have been brought before the court have been withheld. The informant’s version of the occurrence shows at least 3-4 persons. It has withheld the material witnesses who could have narrated the truth of the occurrence. Withholding such witnesses amounts to only presumption that the prosecution has not come with the clean version and it has withheld the real witnesses. In the circumstances version of the prosecution is utterly doubtful. 10. In view of such inconsistencies between the evidence of the sole witness and the medical version which has been brought by the prosecution, we are of the view that the prosecution has not Patna High Court CR. APP (DB) No.389 of 2005 dt.09-09-2011 6 been able to prove the charges. 11. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant is set aside. The appellant is acquitted of the charges. 12. The appellant Ramadhar Mahto, who is in custody, is directed to be released forthwith, if not required in any other case. 13. We appreciate the assistance given by Mr. Ranbir Singh, Advocate as Amicus Curiae on behalf of the appellant. 14. Let a copy of first and last page of the judgment be handed over to Mr. Ranbir Singh, so that he may get his prescribed fee from the High Court Legal Services Committee, Patna. Sheema Ali Khan, J. I agree. Patna High Court, Patna Dated the 09th of September, 2011 N.A.F.R. kksinha/- (Shyam Kishore Sharma, J.) (Sheema Ali Khan, J.)