IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) No.1176 of 2010 ANIL SINGH Versus THE STATE OF BIHAR ----------- 4. 11.02.2011 With the consent of both sides, the bail was heard at the stage of admission. Initially, the F.I.R. was lodged for the offences punishable under Sections 341, 323, 337, 338 and 307 of the Indian Penal Code. The informant Jai Ram Singh had alleged in the F.I.R. that he was a contestant for the election of Mukhiya and on 5th June, 2006 at about 8:35 A.M., while polling was going on, , he (informant) learnt that accused Anil Singh, the brother of Rajeshwar Singh (also a contestant in the election) was threatening his (informant’s) voters at the booth. Learning this, he went there and he prohibited them from doing this. Whereupon, accused Anil Singh thrashed him (informant) down on the ground and assaulted him with fists, slaps and legs, however, the security guards posted on the booth had pacified the matter and separated them. Further allegation was that accused Anil Singh threw a brick bat hitting on the head of the informant causing a bleeding injury there. It was further alleged that Anil Singh also assaulted his (informant’s) brother Ajay Kumar Nirala. The informant stated that he and his brother both were treated in government hospital at Bori. On conclusion of investigation and submission of charge sheet, the accused/appellant Anil Singh as well as other accused Rajeshwar Singh were tried for the offences punishable under 2 Section 307/34, 337 and 341/34 of the Indian Penal Code. On conclusion of the trial, the learned trial court acquitted the accused Rajeshwar Singh of the charges but accused/appellant Anil Singh was, however, convicted under Sections 323 and 337 of the Indian Peal Code only. As to the quantum of the sentence, the learned trial court instead of passing any substantive sentence of imprisonment, directed for release of the accused/appellant under Section 4 of the Probation of Offenders Act on executing probation bond as specified in the order. As many as six witnesses were examined by prosecution. P.Ws. 1, 2 and 3 who had examined on the point of occurrence and turned hostile as they did not support the prosecution story. P.W.4 Jai Ram Singh was the informant himself and P.W.5 Ajay Kumar Nirala was his brother. P.W.6 Rana Randhir Kumar Singh was the doctor who had examined the informant and his brother. The doctor stated to have found one lacerated would simple in nature caused by hard blunt substance on the informant. Further, one swelling and one bruise simple in nature caused by hard blunt substance was found on informant’s brother Ajay Kumar Nirala. In order to prove the occurrence the prosecution relied on the evidence of P.Ws. 4 and 5 who were the informant and his brother. These two witnesses are said to have received injury also but they are most interested witnesses of the case. The P.w.4 stated that Anil Singh assaulted him by brick bat. So far this allegation is 3 concerned, the informant’ brother Ajay Kumar Nirala (P.W.5) was an eye witness but he did not say to have seen the occurrence of assault by brick bat caused at the hands of Anil Singh. The P.W.5 stated in his evidence that later on he learnt that Anil Singh had assaulted Jai Ram Singh by brick. Thus, he was not an eye-witness on the point of assault. At para 5 when he was asked during cross- examination, the P.W. 5 specifically stated that he had not made any complaint to the Polling Officials regarding the threats extended by the accused persons to his (informant’s) supporting voter. Besides the evidence of the P.Ws. 4 and 5; who are brothers and most interested persons and no other independent witnesses have been examined by prosecution. The occurrence is said to have taken place at the booth which was a public place. Occurrence is also stated to have taken place in course of polling when the security personnel and Polling Officers were present there. These persons were most competent and independent witnesses but none of them were examined by prosecution. The prosecution allegation was basically that the accused were threatening the voters casting vote in support of the informant but not even a single amongst voters has been examined by prosecution to say about this fact which was the very substratum of the case of the prosecution. Even the I.O. of this case was not examined to state about the place of occurrence as alleged and about objective evidence which could have been adduced in 4 support of prosecution. Due to these infirmities and lacuna and the evidence of the P.Ws. 4 and 5 not being found sufficient in itself to bring home the charges against the appellant, I feel that the prosecution has not been able to prove its case beyond the shadows of reasonable doubt. In such view of the matters, the conviction and sentence as passed by the learned trial court is fit to be set aside and the same is accordingly set aside. The appeal is allowed. (C. M. Prasad, J.) Ravi/-