Criminal Appeal (S.J.) No. 236 of 1996. (Appeal against the Judgment and Order dated 11.9.1996 passed by the Additional Sessions Judge-II, Katihar, in Sessions Case No. 257 of 1995) ------------ 1. CHATISH MANDAL, SON OF LATE SOHAN LAL MANDAL 2. SANJAY KR. MANDAL, SON OF CHATISH MANDAL. 3. MRITUNJAY KUMAR MANDAL, SON OF CHATISH MANDAL ALL RESIDENT OF VILLAGE CHAKLA MAULA NAGAR, P.S. FALKA, DISTT. KATIHAR. ------- APPELLANTS. Versus THE STATE OF BIHAR ------- RESPONDENT. ---------- For the Appellant : Mr. Rajesh Kumar Singh, Adv. Mr. Rana Pratap Singh No. 2, Adv. For the State : Mr. Uma Shankar Pd. Singh, A.P.P. ---------- P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellants have been convicted under Sections 304/34 of the Indian Penal Code and sentenced to rigorous imprisonment for a period of two years by the Additional Sessions Judge-II, Katihar, in Sessions Case No. 257 of 1995 by a Judgment dated 11.9.1996. 2. The case of the prosecution according to the Informant Sunil Mandal (PW-5) is that he had gone to work as a labourer while his mother, PW-4, Indra Mosmat and deceased Gena Devi were present in the house and when he returned at about 4.00 P.M., the mother informed him that the Appellants who were neighbours had come to their house and had started abusing the wife of the Informant Gena Devi, deceased. It was further alleged that when the deceased Gena Devi forbade them for doing so, they assaulted them with fists and slaps and also lathi on account of which she fell down. She was carrying pregnancy of eight Patna High Court CR. APP (SJ) No.236 of 1996 dt.21-07-2011 2 2 months and when later she developed pain, she was taken to the Hospital where the Doctor gave her four injection on account of which she gave birth to a child at about 11.00 P.M. on the same day, both of whom died subsequently. 3. The prosecution in all examined eight witnesses out of whom PW-8 R.C. Karunamaya is the Doctor who held the post mortem examination of the deceased, stated, that he had found some bruises on the left side of the face and an abrasion near the umbilicus. PW-3, Domu Mandal, PW-6, Naresh Mandal and PW-7 Gujia Mandal have been tendered by the prosecution and in his cross-examination, he stated that he did not know anything about the occurrence. 4. PW-2, Nakuldeo Thakur was the S.I. who recorded the Fardbeyan as also the inquest report and the formal First Information Report, but, handed over the same for investigation, to the next Investigating Officer on 9.11.1995, on his transfer. The next Investigating Officer who was the main Police Officer, was not examined by the prosecution. 5. PW-4 Indra Mosmat, the mother of the Informant and the mother-in-law of the deceased, did not support the case of the prosecution and stated that her daughter-in-law died on account of complication in delivery of the first child. 6. PW-5 Sunil Mandal, who is the Informant and husband/father of the deceased also did not support the case of the prosecution and stated that he did not know as to how his wife died. 7. PW-1 Fekan Mandal is the cousin brother of the first informant, has stated that at about 4.00 P.M., at the alleged date and time of occurrence, he was working in his field, and on hulla, he went to the house of the Appellant Sushil Mandal and saw the accused persons assaulting the deceased Gena Devi and he further stated that Gena Devi Patna High Court CR. APP (SJ) No.236 of 1996 dt.21-07-2011 3 3 was pregnant and when she was taken to the hospital, she died along with her child. In his cross-examination, his attention was drawn to his statement given under Section 161 Cr. P.C. that he was not an eye witness to the occurrence and had merely seen the Appellants fleeing away from their houses. Since the Investigating Officer has not been examined, his attention to this important part of the evidence of PW-1 could not be drawn and has undoubtedly caused prejudice to the Appellants. Since there is no direct evidence against the Appellants of having assaulted the deceased, I am not inclined to sustain their conviction. 8. In the result, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Case No. 257 of 1995, by the Additional Sessions Judge-II, Katihar, is hereby set aside. 9. The Appellants are discharged from the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 21st July, 2011. NAFR/S.ALI.