Judgment:
D.P. Singh, J.
1. This appeal is directed against the judgment of conviction and order of sentence dated 18.1.2001 passed in Sessions Trial No. 176/91/185/98, whereby and whereunder the learned 1st Additional Sessions Judge, Godda held the appellants guilty under Sections 148/452 IPC and sentenced them to undergo RI for three years and seven years and to pay a fine of Rs. 1000/- and in default of payment, to further undergo RI for one year and under Sections 307/34 IPC to undergo RI for ten years and to pay a fine of Rs. 2000/- and in default of payment to further undergo RI for two years.
2. Brief facts leading to this appeal are that one Nandkishore Yadav was sleeping on his veranda in the night of 27th August, 1990 when he saw Sk. Suleman, Sk. Sarafat, Sk. Sukhari and Sk. Manowar were going towards the field along with electric wire. It is further stated that when the informant asked them where they were going with electric wire, all of them came inside the verandah and other accused persons also assembled. All of them started abusing him, after which appellant Suleman asked them to kill him. It is further stated that appellants Sukhari, Sarafat and Manowar assaulted him with Farsa, lathi and Sang resulting in bleeding injury on various parts of his boy. It is further stated that the informant became senseless then all the accused persons entered in his house and carried away household valuables like silver ornaments, cash, rice, wheat, clothes etc. According to the informant, he has got a dispute with the accused persons regarding killing of a bull, for which a case was pending. The informant was carried for his treatment and in the afternoon of 28.8.1990 his statement was recorded by police at Basant Rai O.P. within Pathargama P.S. The Godda police registered Pathargama P.S.Case No. 131/90 and started investigation. The police after investigation submitted charge sheet against all thirty accuse persons. The case was later on committed to the court of sessions for trial, where all the accused persons were charged under Sections 148, 380, 452, 307 IPC to which they pleaded not guilty and claimed false prosecution.
3. The earned trial court, after examining witnesses, acquitted 26 accused persons from all the charges. The appellants were also acquitted from the charge under Section 380 IPC. However, the learned lower court found and held guilty all these four appellants under Sections 148, 452, 307/34 IPC and convicted and sentenced them as aforesaid.
4. The present appeal has been preferred on the ground that the learned lower court has not considered the facts available on the record properly. It is further asserted that the independent witnesses have not supported the prosecution case. According to this memo of appeal. In view of admitted enmity false prosecution was probable. It is further motioned that all the appellants are closely related and implicated intentionally to harass them. The memo of appeal further mentions that appellant No. 1 Suleman is a government teacher while appellant No. 2 was juvenile at the time of occurrence and appellant No. 3 is an old aged infirm person. According to the learned Counsel for the appellants, all these points have not been considered by the learned lower court and ignoring the contradictions, order of conviction has been passed. It is further asserted that the prosecution case suffers from vital contradictions like identification of the appellants, nature of injuries found on the informant and major charge under Section 380 IPC having been found not supported. Therefore, prosecution version should have been disbelieved. All these points were stressed before me by the learned Counsel for the appellants.
5. I have carefully gone through the evidences available on record and the impugned judgment. In the present case co-villager of the informant PW 5, Robin Yadav and PW 6, Prasadi Yadav have been declared hostile because they did not support the prosecution story. The I.O. has also not been examined in this case. PW 2, Nand Kishore Yadav is the informant, who has stated that all these appellants alongwith 26 others came and assaulted him. According to him, he was assaulted with Garasa, lathi and sang on his head, after which he became unconscious. According to this witness, when he regained sense at about 3 AM, his daughter, PW 4 narrated that the dacoity was committed in her house, which story has been disbelieved by the learned lower court. She has admitted in cross examination that appellants Suleman, Sarafat and Manowar are from the same family. He further admitted that TOP is situated just three miles away from his house. The village Choukldar Triveni lives in the village, who was informed but this Choukidar has not been examined as a witness. Now, when the statement of PW 4 is considered, she is said to be a child of 9-10 years at the time of occurrence. In her examination, she named all the 29 persons including the appellants to have assaulted her father. She has further admitted that she could see the faces of the accused in the light of lamp. According to her version, Ashok and Ramdeo are her brothers, Punam Devi is her elder sister and Dhanmanti is her mother but those house inmates are not examined in the court as witness and, therefore, the statement of this witness, who may be present during the occurrence, becomes doubtful.
6. PW 1 Niranjan Yadav, who has signed on the FIR as a witness, has admitted in cross examination that cases were lodged against the appellants in 1987 also. He further admitted, vide para 28, that he has not seen the occurrence and he has stated before the police that he has not gone to the place of occurrence out of fear.
7. PW 3 Devnarayan Yadav reached there after the occurrence. This witness has admitted, vide para 17, that on hearing hulla he became afraid and hid himself behind the bamboo in the village. According to him, he went to the house of the informant only when all the accused fled away and he did not find any outsiders in the house of the informant. This witness has further admitted, vide para 22, that PW 1 came after one hour of his reaching at the house of the informant and, therefore, this witness is not an eye witness of the occurrence.
8. The injury report, proved by PW 7, Dr. P. Jha, mentions that except injury No. 4, all injuries were simple in nature. This injury No. 4 was later on found to be fracture of radius of left forearm. Learned Counsel for the appellant has criticized the injury reports, Exts.5 land 5/1, saying that the first examination was made on 28.8.1990 while the opinion was reserved and later on, after 12 days, the injury No. 4 is said to be gravious on the basis of Skigram but that Skigram is not part of the injury report. I find that the objection raised by the learned Counsel for the appellants is valid and the opinion of the doctor should be based upon the document. In the present case the said Skigram has not been produced in the court below nor it is a part of Exts.5 and 5/1.
9. Having reconsidered the facts and circumstances, mentioned above, I find that the prosecution has not been able to prove the case beyond all reasonable doubts that the occurrence took place in the manner alleged, in which appellants have taken active part and intended to cause death of the informant. The nature of injury also is not of such gravity that in normal circumstance death would have resulted. Further more, in absence of any corroborative evidence that the appellants actually took part in the alleged assault, particularly in view of the admitted fact that there were cases pending between the parties, I find it unsafe to rely upon the statement of PW 2 alone. The major part of the prosecution story has also been disbelieved by the learned lower court, when he acquitted 26 accused persons from all charges and the appellant also from charge under Section 380 IPC.
10. Having considered all the facts and circumstances, I find and hold that the prosecution has not been able to prove beyond reasonable doubts that the appellants actually took part in the alleged assault and house trespass with intention to commit crime. Accordingly I find land hold that the conviction of the appellants cannot be sustained.
11. In the result, this appeal is allowed and the judgment of conviction and order of sentence dated 18.1.2001 is set aside. The appellants are acquitted from all the charges. Since the appellants are on bail, they are discharged from the liability of their bail bonds.