IN THE HIGH COURT OF JUDICATURE AT PATNA GOVT. APP. (SJ) No.9 of 2008 THE STATE OF BIHAR Versus 1. CHANARDHAN RAI 2. ARUN RAI 3. RAM PUKAR RAI 4. BHAJAN RAI 5. UDAI RAI 6. NEWALAL RAI 7. UMESH RAI 8. VIPATI DEVI 9. RAM BALAK RAI 10. AJAB LAL RAI For the appellant : Mr. Prabhat Kumar, J.C. to G.A.-3 For the respondents: Mr. Ashutosh Kumar, Advocate. ----------- 5 16.01.2009 I.A. No. 1883/2008 Heard the parties. Notices were issued to the respondents in the limitation matter. Heard Mr. Prasoon Sinha, learned G.A. and Mr. Ashutosh Kumar, learned counsel appearing on behalf of the respondents. There is no counter affidavit on record to traverse the ground(s) taken in the limitation application. This Court, therefore accept the facts/grounds set out for condoning the delay. The application seeking condonation of delay is allowed. I.A. No. 1883/2008 stands disposed of. Heard. Counsel for the appellant submits that service report on the file indicates that respondent no. 1 (Chanardhan Rai) is dead. The present appeal at the instance of the State is - 2 - directed against the judgment and order dated 18the February, 2008 passed by the learned Trial Court (Addl. Sessions Judge, F.T.C.-1 Sheohar at Sitamarhi) in Sessions Trial No. 357/2003. The respondents herein were charged under sections 147, 323, 341, 504, 328/34 and 379 of Indian Penal Code and sections 3 and 4 of the Prevention of Witch (Daain) Practices Act.. The complaint was lodged by P.W. 9. This was treated as F.I.R.. Upon submission of charge sheet, the Court framed charges under those sections and the respondents herein were tried. The prosecution, in order to prove the charges examined altogether 10 witnesses. The Court has taken note of the fact that the family members namely P.W. 1, 5, 8 and 9 have supported the prosecution case. Although some other independent witnesses were cited in the complaint/F.I.R. but those witnesses did not appear to depose in support of the charge. The learned Trial Court, on appraisal of the evidence on record, found the respondents herein guilty for the charges punishable under sections 147, 323, 341 and 504 of Indian Penal Code only. The Trial Court finding the evidence discrepant and insufficient held that the charges framed under sections 379 and 328 of Indian Penal Code and sections 3 and 4 of Prevention of Witch (Daain) Practices Act have not been proved beyond all shadow of reasonable doubt. Having held so, the respondents (accuseds) were acquitted of those - 3 - charges. The Trial Court extended benefit of Probation of Offenders Act instead of sentencing the respondents for the charges for which they were found guilty of. Against this judgment, the present appeal has been preferred. Learned counsel for the appellant has submitted that the Court committed a serious mistake/error in acquitting the respondents herein of those charges whereas on the basis of same set of evidence, they were found guilty under different sections/charges. Counsel for the appellant in order to support the said submission draws attention of the Court to various paragraphs of the judgment where the witnesses have been dealt with. Per contra, learned counsel for the respondents submitted before this Court that the charges for which they were tried and acquitted constitute different and distinct offence(s). According to the counsel, the Court has found the evidence discrepant and frugal and as such the respondents have been let off under those charges. In this connection, he draws attention of the Court to the findings of the learned Trial Court recorded at paragraph nos. 7, 8, and 9. This Court carefully perused the findings so recorded by the learned Trial Court. It appears that the Trial Court has taken a view that the evidence on the point of theft is/are discrepant. After referring to the relating evidence in this regard, a conclusion has been drawn that the prosecution has - 4 - miserably failed to prove the said charge of theft. This Court does not find any illegality in recording the said finding on the strength of evidence brought on record. Counsel for the respondents further submitted that so far charge punishable under section 328 I.P.C is concerned, the Court after collating the evidence on record has come to the following findings: ” Therefore, I find that there is no direct, reliable and cogent evidence that who have administered the night soil in the mouth of the informant. Moreover, for the offence u/s 328 of the Indian Penal Code the prosecution is required to prove that the substance in question was poisonous or any stupefying, intoxicating or unhole some drugs etc and after administering the same, caused hurt. Therefore, it is essential of the prosecution to prove that the accused persons are directly responsible for administering the poison. Therefore, I find that the prosecution has failed to prove the charge against the accused u/s 328/34 of Indian Penal Code against the accused persons. Now I come to the charges u/s 3 and 4 of the Witch Act. In this case, all the accused persons who have deposed in this case, have stated that the informant has no charm of curing the ailing daughter of the accused but no any evidence came in this case that the accused persons told the informant that she is dian. Moreover, I find that only accused persons calling the informant as dian, not comes under the ambit of the witch Act. Therefore, I find that the prosecution has failed to prove the charge u/s 3 and 4 of the Witch Act. “ In the same paragraph, the Trial Court has recorded finding that the charges punishable under sections 3 and 4 of Prevention of Witch (Daain) Practices Act have also not been proved beyond shadow of reasonable doubt. This Court on perusal of the judgment of the learned Trial Court particularly discussions/findings culled out in - 5 - paragraph nos. 7, 8 and 9 and after hearing both the sides is of the view that no patent illegality has been committed by the Court in acquitting the respondents herein of the charges punishable under sections 379 and 328 of Indian Penal Code and sections 3 and 4 of Prevention of Witch (Daain) Practices Act warranting interference by this Court. This view of the Court has been taken keeping in focus the submissions advanced and the fact that admittedly the complainant had named several witnesses who were non-partisan but none of them has come forward to support those specific charges. Counsel for the appellant then assails the part of the judgment whereby the learned Trial Court after convicting the accused (respondents herein) let them off under the provisions of Probation of Offenders Act. It has been submitted that a lady has been assaulted by the accused in so much so she was made half naked. According to him, there was no sufficient and/or compelling reason, in the particular facts of the case, to grant them the privilege under the Probations of Offenders Act. He submits that the manner of occurrence which stands proved at the trial at least deserves sentence or fine. This Court finds force in the said submission. while dismissing the present appeal, the following modification in the sentence shall sub-serve the cause of justice: (i) In stead of letting the respondents off under the provisions of Probation of - 6 - Offenders Act, a fine of Rs. 250/- each is imposed on all the convicts/respondents. In case of default in payment of fine, the convicts/respondents are directed to undergo simple imprisonment for a period of one month. (ii) The fine so imposed on each of the surviving respondents must be deposited in the Trial Court within two months from today failing which the Trial Court shall proceed to take appropriate steps to take the respondents in custody for serving out the sentence. (iii) If the fine so imposed on each of the surviving respondents is/are deposited, the Trial Court shall ensure that the same is paid to the informant Sita Devi or to her son Alok Kumar, (P.W. 9). pkj ( Kishore K. Mandal, J )