CRIMINAL APPEAL (SJ) No.774 OF 2004 ------ Against the judgment and order of conviction dated 31.7.2004 passed by Sri Nirmalesh Chandra Lala, (Ad-hoc Sessions Judge) Additional Court No. II, Patna, in Sessions Trial case No.38/1996 /115/01 ------ Dukha Sao S/o Late Halkhori Sao, resident of village- Bina Bigha, P.S. Bikram, District-Patna ….. Appellant Versus The State of Bihar …..Respondent ------ For the appellant : Mr. R. N. Jha, Amicus Curiae For the State : A. P.P. ------ P R E S E N T THE HON'BLE JUSTICE (MRS.) SHEEMA ALI KHAN ------ S. A. Khan, J. This appeal has been preferred against the judgment and order dated 31st July, 2004 passed in Sessions Trial No.38 of 1996 /115 of 2001 by Sri Nirmalesh Chandra Lal, (Ad-Hoc Sessions Judge), Presiding Officer, Additional Court No.2, Patna, whereby and whereunder the sole appellant has been convicted under section 304 Part II of the Indian Penal code and sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case, in short, is that on 31.5.1991, the informant Bishwanath Sao, who is the father of the deceased Om Prakash Sao, was given information by one Ganauri Mochi that his son has been assaulted by accused- appellant Dukha Sao with a lathi and he is lying in a serious condition. The informant reached at the place of occurrence and thereafter took Om Prakash Sao for treatment. He was referred to Patna Medical College Hospital, where he died. The cause of occurrence, as disclosed in the first information report, is ‘family dispute’. 3. The defence case, on the other hand, is that Om Prakash Sao was having an affair with his elder brother’s wife, namely, Krishna Sao and all of them - 2 - often quarrelled and on the date of occurrence there was difference between them and Om Prakash Sao is said to have taken out bricks from the piles of bricks which led disturbance in configuration of the brick wall and it is said that bricks fell on him, as a result of which, he got injuries on his head and other parts of the body. 4. Seven witnesses have been examined in this case. P.W.2 (Bishwanath Sao) is the informant of this case and is a hear-say witness. P.W. 4 (Diwali Sao) has been tendered for cross-examination and P.W.5 (Sant Singh) has been declared hostile. P.W.6 (Dr. Arbind Kumar Singh) is the doctor, who conducted the post mortem examination on the dead body of the deceased and P.W.7 (Narayan Sharma) is a formal witness, who has proved the FIR. There are only two eye witnesses on the point of occurrence i.e. P.W.1 (Shyamji Prasad) and P.W.3 (Jai Prakash Sao) and, as such, this court will examine their evidence as the same is important for the purpose of deciding this appeal. 5. P.W. 1, Shyamji Prasad, claims that he is the eye witness to the occurrence, inasmuch as, he has stated that he was standing outside his house when he saw that appellant inflicted two lathi injuries on Om Prakash Sao. The first injury was inflicted on the head and the other was on the shoulder. The cross-examination of this witness discloses that he did not take any steps to call the family members of Om Prakash Sao, although occurrence is said to have taken place a few feet away from the house of Om Prakash Sao. Further, this witness has also not raised any hue and cry and did not take any steps to save the so-called victim. Apart from the above facts, the most striking feature in the evidence of P.W.1 is that although he claims to see the occurrence but he has not stated a word regarding the fact whether he accompanied the injured person to the hospital or he took any steps to inform the family members of the injured person regarding the occurrence. It appears from the evidence led in the trial court that in fact this witness was not an eye witness to the - 3 - entire occurrence for the reason that according to this witness two lathi blows were inflicted on Om Prakash Sao; one on the shoulder and another on the head but the post mortem report does not indicate that there was any injury on the shoulder. In fact, it is stated that there was some abrasion on the chest and on the lower part of the legs. Therefore, it appears that this witness is not an eye witness to the occurrence. A suggestion has been given by the defence that Om Prakash received injuries on his head and others part of the body while taking out bricks, which he has denied. 6. Another witness, who claims to be the eye witness to the occurrence, is P.W.3 Jai Prakash Sao, the real brother of Om Prakash Sao, deceased. According to P.W.3, he saw the occurrence taking place but he had not call out for help or tried to save his brother when he was being assaulted by the appellant. Curiously enough, this witness did not take his brother for treatment after the said occurrence nor this witness accompanied his father to the Patna Medical College Hospital, where Om Prakash Sao was referred for treatment. The reasons for implicating the appellant would be obvious when P.W.3 states that on the date of occurrence at about 7.00 A.M. there was an altercation between P.W.3 and the son of the accused with respect to out-let of water from a canal. A suggestion has been put to this witness that Om Prakash Sao, who was unmarried, was having affair with his brother Krishna’s wife and these three brothers were not on good terms with each other and, therefore, they did not take any steps to help in taking Om Prakash Sao to the hospital after he had received the injuries. P.W.3 denies the suggestion. However, this fact has been supported by D.W.1 (Bashisth Singh) and D.W.2 (Bhuklu Singh), who are the defence witness. 7. The appellant has been convicted on the basis of the evidence of P.W. 1 and 3. On perusal of the deposition of the above witnesses, I find that the quality - 4 - of the deposition of P.W. 1 and 3, who claim to be the eye witnesses, is unnatural in the facts and circumstance of the case. These two witnesses apart from stating that they are the eye witnesses have acted in a manner which is unnatural and unbelievable. A mere statement that they were present at the place of occurrence without any support from the surrounding circumstances does not inspire confidence and on the basis of such evidence it cannot be held that the appellant was responsible for inflicting injuries specially in view of the specific defence led by the defence by producing witnesses in the court. The implication of this witness appears to be motivated as far as P.W.3 is concerned and the claim of P.W.1 that he was present at the place of occurrence is unbelievable for the reasons stated above. 8. In the facts and circumstances of the case, I find that the prosecution has not been able to prove the case beyond all reasonable doubts and, as such, this court does not feel it safe to convict the appellant under section 304 part II of the Indian Penal Code for the offence alleged. Accordingly, the appellant Dukha Sao is acquitted of the charge under section 304 Part II of the Indian Penal Code and the judgment and order of conviction dated 31st July, 2004, passed by the Presiding Officer, Additional Court No.2, Patna, in Sessions Trial No.38 of 1996/ 115 of 2001 is set aside. The appellant, Dukha Sao, is directed to be released from the jail custody forthwith, if not required in any other case. 9. In the result, this appeal is allowed. (Sheema Ali Khan, J.) Patna High Court, Patna. Dated the 21st April, 2009. NAFR / JA/-