Criminal Appeal (SJ) No.89 OF 1994 [Appeal against the judgment and order dated 8.3.1994 passed by the 4th Additional Sessions Judge, Samastipur in Sessions Trial No.52 of 1987/ 39 of 1992] 1. MUNNI BAITHA SON OF FATINGA BAITHA 2. PURAN BAITHA SON OF MUNNI BAITHA 3. DHANIK BAITHA SON OF FATINGA BAITHA 4. SAGAR BAITHA S/O DHANIK BAITHA 5. GANESH BAITHA SON OF DHANIK BAITHA 6. ARUN BAITHA SON OF DHANIK BAITHA, ALL RESIDENTS OF VILLAGE BHAGWANPUR CHAKSEKHU, P.S. DALSINGSARAI, DIST. SAMASTIPUR ------------------- Appellants Versus THE STATE OF BIHAR ------------------- Respondent For the Appellants : Mr. Basant Kr. Choudhary, Senior Advocate Mr. Arvind Kumar, Advocate For the Respondent : Mrs. I.B. Pandey, A.P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellants are aggrieved with the judgment dated 8.3.1994 passed by the 4th Additional Sessions Judge, Samastipur in Sessions Trial No.52 of 1987/ 39 of 1992, by which he has convicted the appellants u/ss.304A, 323 and 147 I.P.C. and awarded sentence of two years, one year and another one year respectively. The prosecution case, in short, is that on 25.7.1986 at about 3 P.M. when the informant was sitting at her door, appellant Munni Baitha came there and threatened that he would cut palm tree, upon which she protested, but he caught her and slapped - 2 - her three to four times and the other accused persons also came there and assaulted her with lathies and committed theft. Due to this assault, the informant lost her baby and, therefore, all the accused persons had been charged u/ss.316, 323 and 147 I.P.C. The prosecution has examined in all eight witnesses. Out of whom, P.W.1, P.W.2, P.W.3 and P.W.5 are material witnesses, whereas the P.W.4 is tendered and P.W.6 is formal and P.W.7 is the Investigating Officer and P.W.8 is the doctor. The doctor, who had examined P.W.3, found three bruises on her person and found that she complained of pain in the lower abdomen and there was bleeding from her vagina. It has been submitted that P.W.1 and P.W.2 had conceded that abortion had taken place a month after the occurrence and, therefore, it is difficult to conclude that the lady had aborted on account of the assault by the accused persons. The further submission is that no offence u/s.304A I.P.C. is made out since neither the postmortem of the child was held nor is there any direct evidence with regard to causing of death of the child by the accused persons and the entire case is based on an inference having been drawn by the court below. Considering such arguments as well as on going through the evidence on record and the judgment in question, I am inclined to accept the arguments advanced on behalf of the appellants. In view of such, this appeal is allowed and the order of - 3 - conviction and sentence passed against the appellants on 8.3.1994 by the 4th Additional Sessions Judge, Samastipur in Sessions Trial No.52 of 1987/ 39 of 1992 is set aside. The appellants are discharged from the liabilities of their respective bail bonds. Patna High Court Dated, 29th March, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )