CRIMINAL REVISION No.18 OF 2002 Against the judgment dated 29.9.2001 passed by Sri Subhash Kumar Singh, 5th Additional Sessions Judge, Begusarai in Criminal Appeal No. 24 of 1992 affirming the judgment dated 10th April, 1992 passed in by Sri Krishna Sinha, J. M. Ist Class, Begusarai in G.R. No. 875 of 1995/T.R. No. 459 of 1992. ********** 1. CHANDRA BHUSHAN DAS 2. SHASHI BHUSHAN DAS 3. SIKANDRA DAS @ SIMKENDRA DAS …………………………………… PETITIONERS Versus 1. STATE OF BIHAR 2. KRISHNA KUMAR GUPTA ……………………………………..OPPOOSITE PARTIES ******** For the petitioners: - Mr. Pramod Manbansh, Advocate For the O. P. No. 2: - Mr. Amitesh Kumar, Advocate For the State : - Mr. Uma Shankar Prasad Singh,APP ******* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S.K. Sharma, J. Heard learned Counsel for the petitioner, learned Counsel for the State and the learned Counsel appearing on behalf of O.P. No.2. This revision application is directed against the judgment and order dated 29.09.2001 passed by the 5th Additional Sessions Judge Begusarai in Criminal Miscellaneous Appeal No. 24 of the 1992 whereby he confirmed the judgment and order dated 10.04.1992 passed by the Judicial Magistrate First Class, Begusarai in G.R. Case No. 875 of 1985 T.R. No. 459 of 1992 with modification in the sentence directing the petitioners to be released after executing a bond of Rs. 5000/- with two sureties for maintaining peace. 2 3 According to the prosecution case at 5.00 a.m. on 03.05.1985 when the informant was washing his mouth in his house, Basu Das and his three sons namely Chandra Bhushan Das, Shashi Bhushan Das and petitioner Sikandar Das, Shrimati Kamli Devi, Lala Devi being armed with lathi, danda and katta entered inside the house and started beating by means of sticks and bricks. Family members of the informant were assaulted with lathi and brick. Allegation was that Sikandar Das assaulted the family members of the informant and also assaulted the informant by katta on his leg and attempt was also made to give a katta blow on the neck of the informant. Shashi Bhushan Das, his father and wife assaulted the wife of the informant with lathi, fists and slaps who came to rescue him. Shashi Bhushan Das snatched a golden chain of the wife of the informant and taken away wrist watch of Usha Kumari, daughter of informant. Sikandar Das taken away a golden ear ring from eldest daughter of the informant. The motive was that on 02.05.1985, some papaya were plucked and that papaya was standing in the courtyard of the informant. The case was registered under Sections 147, 148, 323, 448, 379 and 307 of the Indian Penal Code. After investigation the case was found under Sections 323 and 325/34 of the Indian Penal Code against Babu Das (dead) and the petitioners. Charge under Section 325/34 of the Indian Penal Code was framed against the petitioners. Later on Charge under Section 379 of the Indian Penal Code was also framed. The Trial Court found the petitioners guilty under Section 323 of the Indian Penal Code. As the witnesses were not produced for further cross-examination after amendment of charge 4 hence, the charge under Section 379 of the Indian Penal Code was omitted. Against the judgment of their conviction and sentence under Section 323 of the Indian Penal Code, the petitioners preferred an appeal vide Criminal Appeal No. 24 of 1992, which was disposed of on 28.02.1998 and the matter was remitted back to the Trial Court after setting aside the judgment. Being aggrieved the petitioner filed a petition under Section 482 Cr. P.C. vide Criminal Miscellaneous 14339 of 1998 and this Court vide order dated 24.12.1998 set aside the order dated 28.08.1998 and remitted back the matter to the Appellate Court with a direction to examine the question of correctness of conviction under Section 323 of the Indian Penal Code. After remand the Appellate Court confirmed the judgment of conviction under Section 323 of the Indian Penal Code with modification in the sentence under Section 360 (4) of Cr. P.C. Grievance of the learned Counsel for the petitioner is that there was admitted land dispute between the parties and in such background non-examination of independent witnesses creates a grave doubt on the prosecution version of the case. Specific case of the prosecution regarding presence of independent witnesses and their non- examination are vital contradictions which have not been taken into account. The assault by sharp cutting weapon namely katta is doubted from the fact that no such injury was found over the body of the informant. Doctor was not examined and in absence of doctor the injury report could not be read. The evidence with regard to injury was the evidence of I.O. who stated that he did not find any injury over the person of the wife of the informant or on the informant. Informant himself is the Head Clerk of 5 Health Department, Beriya Block and he was in a position to fabricate any injury report in his favour. The evidence of P.W. 1 regarding his treatment by a doctor (P.W.1, para 97) that the injury was examined by Dr. Kameshwar Singh is falsified from the evidence of P.W. 4 in which he stated that the injury report was given by doctor Issaque. It has been submitted that these are the vital contradictions in the prosecution case but the Courts below have erred in convicting the petitioners as two versions of injury could not be looked into. The prayer for acquittal of the petitioners has been objected by the learned Counsel for the State and learned Counsel for the O.P. No.2 and it has been submitted on behalf of them that conviction has been found to be true by both the Courts. So the finding of the facts should not be disturbed. Altogether four witnesses were examined on behalf of the prosecution, they are P.W.1 Krishna Kumar Gupta, P.W.2 Kailu Poddar P.W. 3 Rukmini Devi and P.W. 4 Madan Prasad. P.W. 2 was an independent witness who had not supported any part of the occurrence and he was declared hostile. P.W. 4 is the investigating officer. Hence only two witnesses were examined on behalf of the prosecution in support of the occurrence. According to the case of informant, daughters were also injured in that occurrence but there is no explanation on behalf of the prosecution as to why those two injured witnesses were not examined. According to P.W.1, (para 103) even the informant has not seen assaulting his wife and daughter. P.W. 1 has stated that his wife was 6 assaulted but his statement has been contradicted by P.W.4 who in paragraph 7 of his deposition has stated that he has not found any injury on the person of the informant or his wife. The name of the doctor who is said to have treated the injured is also contradicted one. One is saying that injured was treated by the doctor Kameshwar Singh but another witness says that the injury was treated by doctor namely Dr. Ishaque. It has also been pointed out that a Title Suit No. 79 of 1981 was pending before the Court of Munsif Ist with respect to the land situated between the house of the accused and the informant who is the plaintiff in that very case. With regard to the same occurrence he has filed a Criminal Case but in that Case the petitioner was acquitted. Once a defence is taken that there was injury and enmity then the onus is shifted upon the prosecution to examine an independent witness. If it is a case of the prosecution that some independent witnesses were also present at the time of occurrence, then their non-examination creates doubt on the truthfulness of the prosecution version. In this Case not only non-examination of the independent witnesses creates doubt but also the evidences of P.W.1 and P.W.4 regarding treatment by the different doctors created doubt over the prosecution case. These facts were to be heard by the Courts below. The prosecution has miserably failed to clarify the contradiction with regard to the names of the doctors and non- examination of the independent witnesses. In that background, the entire occurrence becomes doubtful. Once a doubt is created, then it is settled principle of law that benefit of doubt will go to the accused and not to the prosecution. 7 Patna High Court, Patna Dated 10th April, 2008 N.A.F.R./Krishna In the result, I am of the view that the prosecution has not been able to prove its charges against the petitioners beyond the all reasonable doubt. So the petitioners are entitled to get benefit of doubt. Accordingly, the judgment of conviction and sentence is set aside and this revision application in allowed. (Shyam Kishore Sharma, J.)