IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.352 of 1989 -------- Against the judgment and order dated 9.6.1989 passed by Shri Deoki Nandan Prasad, 2nd Additional Sessions Judge, Saharsa in Sessions Trial No.7 of 1987. --------- 1.Kamal Sharma son of Kunjo Sharma 2.Deo Narain Sharma son of Nakchhedi Sharma @ Dehuna 3.Bidya Sharma son of Bhadai Sharma 4.Babuan Sharma son of Kunjo Sharma 5.Kedar Sharma @ Kedariya son of Nathuni Sharma 6.Pavitra Sharma son of Malbhogi Sharma All residents of village-Chikni Purwari Tola, P.S.-Sour Bazar in the district of Saharsa …….. ……..Appellants Versus The State of Bihar …….. ……..Respondent ----------- For the appellants: Mr. Shakeel Ahmad Khan, Sr. Advocate Md.Sharfuddin, Advocate For the State: Mrs. Shashi Bala Verma, A.P.P. ---------- P R E S E N T The Hon’ble Mr.Justice Navaniti Prasad Singh The Hon’ble Mr. Justice Ashwani Kumar Singh --------- Navaniti Prasad Singh & Ashwani Kumar Singh, JJ. The six appellants have been convicted for the offence under section 302/34 of the Indian Penal Code for which they have been sentenced to life imprisonment. They have further been convicted for the offence under sections 147 and 323 of the Indian Penal Code and sentenced to rigorous imprisonment for one year and six months respectively under the said two counts. The sentences have been ordered to run concurrently. 2. Briefly stated the prosecution case is based upon fardbeyan of the informant, Budhni Devi stating that on 19.10.1985 early in the morning she with her two minor daughters aged about four years and one and half years was proceeding to her Naihar. There was a ditch on the road with water. She fell down in the ditch with her younger daughter in her lap. 2 The daughter started crying. Suddenly, the appellants turned up with Lalthi and Danda and started mercilessly assaulting her calling witch (Dayan) as a consequence whereof the child in her lap was injured and died. She received injuries. When some other persons came, the appellants ran away. Upon first information report being registered, the child was sent for postmortem examination and the informant was medically examined for injuries. Upon investigation, the police submitted chargesheet and as the alleged offence was exclusively triable by court of sessions, the case was committed to the court of sessions. The charges were framed. The appellants pleaded not guilty and were tried and convicted. 3. In all, prosecution has examined ten witnesses, out of whom three are official witnesses. P.W.1 Dr. Ramdeo Jha, who is Civil Assistant Surgeon, conducted postmortem examination of one and half year old child. He found only one injury i.e. one lacerated wound 1 ¼” x ½” x bone deep over the right parietal region of skull. The doctor has opined that it would be caused by Lathi and Danda but in his cross-examination he has admitted it could be also caused by fall. P.W.2 Dr.B.K.Jha, who is also Civil Assistant Surgeon has examined injuries on the person of the informant. There are only four injuries noted. One is an incised wound on the front of the right palm 2 ½”x½”x¼”. The second and fourth are swellings on the back side of palm and back side on the right side of the body. Injury no.3 is dislocation of joint of the right index finger. All the injuries are thus on right side of the body. The injuries are by and large simple and superficial except injury no.3. The Investigating Officer has been examined as P.W.10. P.W.3 to P.W.8 are independent witnesses but they have all been declared hostile as even in their examination-in-chief they have not supported the prosecution 3 even an inch. That leaves P.W.9, who is the informant. Thus, it is the sole testimony of the informant which has led to the conviction of all the appellants. 4. Let us now examine the testimony of P.W.9, the informant. She reiterates the facts as stated in the fardbeyan that while moving on the road she fell in a ditch with water along with her child, who started crying. Thereafter, the appellants appeared with Lathi and Danda and mercilessly assaulted her which caused fatal injury to her child as well. In her cross- examination she has stated that she was beaten up with Lathi and Danda at least forty to fifty times by all these six appellants. From her own testimony one thing is clear that she first fell in a ditch on the road with her child. 5. Mr. Shakeel Ahmad Khan, learned Senior Counsel in support of the appellants points out that when we look into the injuries sustained by her it would be seen that all the injuries are basically on one side of the body including dislocation. That is inconformity with the informant’s own statement that she fell in ditch on the road. The incised wound on her palm is inconsistent with her own statement that she was beaten up with Lathi and Danda. It is consistent with her own statement of falling in the ditch on the road. It is further submitted that there is only single injury on the child that too on the head. The doctor in cross- examination (P.W.1) admits that it could be caused by fall as well. Thus, we find that the injuries both on the child who died and the lady informant are consistent with her own story of fall and consequence thereof rather than these persons mercilessly assaulting her with Lathi and Danda. Only four injuries are found on her person and not forty to fifty lathi blow that she allegedly received. Thus, in our view, the prosecution has failed to establish 4 its case at all. 6. Thus, the learned Additional Sessions Judge has wrongly convicted the appellants in Sessions Trial No. 7 of 1987 by his judgment dated 9th June, 1989 which we have no option but to set aside. The appeal is allowed. The appellants are discharged from the liabilities of their bail bonds. 7. Before closing, we may note a distressing fact. From the age as assessed by learned Additional Sessions Judge at least three of the appellants, it would be found that they were minors as per his own assessment on the day of occurrence. Even if it was not argued by the lawyer appearing before him as also before us having assessed the age to be minors, he had to apply the law in that regard and the application of law in this regard is not to be ignored merely because the plea is not taken. The obligation is upon the court itself. ( Navaniti Prasad Singh, J.) ( Ashwani Kumar Singh, J.) Patna High Court, Patna Dated, the 19th August, 2011 Md.S.(NAFR)