Criminal Appeal (SJ) No.67 of 1999 **** Against the judgment, dated 31.03.1999, passed by Shri Abdul Samad, Additional Sessions Judge, III, Munger, in Sessions Case No. 85 of 1994 **** 1. Adya Bind @ Singh, son of late Basudeo Bind 2. Bishundeo Bind @ Bishundeo Singh, son of Pachkauri Bind Both resident of village Najra Sita Rampur Bind Toli, P.s. Bariarpur, district Mundger .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. Mr. Nirmal Kumar Sinha No. III, Adv For the Respondent .. Mr. Suresh Pd. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the State. 2. The appellants have been convicted for offence under Section 324 of the Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case, as alleged by the informant, Suresh Mandal, is that his uncle, Lakhan Mandal and co-villager, Bala Mandal, had gone to Parda Bahiyar at a distance of two miles away from his village to see his field and cut the grass. The informant was also cutting the grass in a maize field then at about 05.00 p.m. Rewati 2 Bind, Dinesh Bind, Ratneshwar Bind, Garho Bind, Sakaldeo Bind, Palta Bind, Parmatma Bind, Bishundeo Bind, along with 7-8 persons, residents of village Sitarampur Nazira Bind Tola, came and caught hold of his uncle, Lakhan Mandal and Bala Mandal and dragged them to the east towards the river Ganges and took them on a boat with intention to kill. The wife of Bala Mandal was also in the field and some co-villagers were also there around them. 4. On the fardbeyan, the first information report lodged and after investigation the charge submitted for offence under Section 364/34 of the Penal Code and the charge sheet submitted, the cognizance taken and the case committed to the Court of sessions. After commitment the charges were framed against five accused persons. However, it appears others absconded and the trial of only these two appellants proceeded. 5. However, during the trial only three witnesses have been examined. P.W. 1 is Baba Dhai Devi, wife of late Lakhan Mandal, P.W. 2 is Sukumari Devi, wife of late Bala Mandal and P.W. 3, Suresh Mandal, the informant. However, after the examination-in- chief of P.W. 3, he did not turn up for further cross examination. 6. The learned Additional Sessions Judge, however, taking into consideration the evidence of P.Ws. 1 and 2 held that though there is contradiction in the evidence of the witnesses, but, the contradiction is trivial in nature and the non-examination of investigating officer is not of much significance and held the appellants guilty for offence under Section 364 of the Penal Code. 7. The learned counsel for the appellants contends that 3 P.W. 3, the informant, did not turn up for cross examination after his examination-in-chief, hence, his evidence is of no consequence. P.W. 1 in his evidence has stated that her statement was not recorded by the police during investigation and the evidence of P.W. 2 suffers from inherent contradiction and improbabilities and, hence, the prosecution has not been able to prove the charges. 8. The learned counsel for the State, however, supported the order of conviction and sentence recorded by the lower Court. 9. However, taking into consideration the respective submissions, it is pertinent to mention that P.W. 3 is the informant, however, after his examination-in-chief he did not turn up for cross examination and, hence, his evidence is of no consequence. P.W. 1, however, claimed to be the wife of one of the victims, Lakhan Mandal and however she has come to supported the prosecution case though in her evidence she has specifically stated that her statement was not recorded by the police during investigation and in paragraph 5 of her cross examination she has specifically stated that the police never asked or enquired her about the occurrence during the investigation and she is giving her statement for the first time in Court. However, she has stated that after her making hulla Suresh came then she disclosed Suresh about the occurrence, however, suresh is the informant and Suresh himself claimed to be the eye witness and had stated that wife of Lakhan Mandal and Bala Mandal have told him about the occurrence. However, the fardbeyan though on record, but, has not been marked as Exhibit, does not mention the name of this witnesses, P.W. 1, and, hence, evidence of P.W. 1 does not inspire 4 confidence. So far the evidence of P.W. 2 is concerned, her evidence suffers from defect that she herself has stated that she is unable to see beyond one hand and she can not say whether this illness is since last 20-25 years. Hence, evidence of this witness suffers from his being a competent witness to see and identifying the accused in view of the impediment that she is unable to see beyond one hand and her evidence can not be relied upon regarding the identification of the accused persons without any corroboration. However, except three witnesses, none has examined though six persons have been named as witnesses in the charge sheet. Even the investigating officer has not been examined. Hence, there is no cogent, reliable and unimpeachable evidence to support the prosecution case. 10. Hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubts, therefore, the order of conviction and sentence, recorded by the lower Court, is not sustainable and is hereby set aside the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 09th day of December 2011, N.A.F.R., S.A.