JUDGMENT By the Court.—The present criminal appeal has been filed by Baij Nath son of Budhu resident of Janki Ka Purwa, Hamlet Mawai, P.S. Husain Ganj, District Fatehpur challenging the conviction and sentence under Section 302 IPC passed by Vth Additional Session Judge, Fatehpur on 4.3.1982 in S.T. No. 238 of 1981, State v. Baij Nath, arising out of Case Crime No. 55 of 1981, P.S. Husain Ganj, District Fatehpur. 2. Heard learned counsel for the appellant Mr. P. N. Mishra, learned Senior Counsel, assisted by Mr. D. K. Tiwari, Advocate, learned AGA for the State and perused the record. The appeal was admitted and prayer for bail was allowed on 16.3.1982. 3. The brief facts of the case is that Faguna father of the deceased Kumari Kusma resident of Janki Ka Purwa, P.S.Husain Ganj, District Fatehpur lodged the First Information Report at P.S. Husain Ganj, District Fatehpur at 9.30 a.m. on 5.3.1981. According to version of First Information Report in the preceding evening i.e. on 4.3.1981 when the meals were being prepared in the house, since there was no arrangement of vegetable, hence his daughter Km. Kusma aged about 18 years at about 6.30 p.m. went towards his field in the south west side of the village to bring onion from the field. When she did not return and there was unusual delay then he went to see his daughter in the onion field. He heard cry of his daughter and when he asked deceased, Km. Kusma, she replied that appellant Baij Nath was assaulting her by Khurpi. The complainant raised alarm and after hearing the alarm Nand Lal P.W.-3 resident of village Poore gobardhan with torch, Bhaggu resident of Dhanka Maee, P.S. Sultanpur, Ghosh and his wife Smt. Makoiya, who had gone to attend call of nature, reached on the spot. They challenged the accused appellant and flashsing the torch, asked the accused, as to what was he doing with his daughter. Complainant said that his daughter was just like his sister. Thereafter accused appellant ran away towards the south they chased but they could not apprehend him. By the side of his daughter, blood stained Khurpi was seen. She was taken to Mawaee hospital and after some time she expired. Next day morning the written report was lodged at P.S. Husain Ganj, District Fatehpur at 9.30 a.m. by P.W. 2, father of the deceased. By the side of his daughter, blood stained Khurpi was seen. She was taken to Mawaee hospital and after some time she expired. Next day morning the written report was lodged at P.S. Husain Ganj, District Fatehpur at 9.30 a.m. by P.W. 2, father of the deceased. The deceased was medically examined by Doctor S.K. Gupta, P.W. 5, at 9.00 p.m. on the same day i.e. 4.3.1981 and 20 injuries were found on person of Km. Kusma. The Investigating Officer, Sub-Inspector, Jag Jiwan Singh, P.W. 6 after preparing the memo of torch, handed over the torch to Nand Lal. Blood stained, plain earth and Khurpi was taken and separate memo were prepared. The bangles, one bala, two broken teeth and two pieces of bross chain were also recovered and fard was prepared, which is exhibit Ka-18. Prosecution examined P.W.-1. Doctor Mr. S.K. Singh, who conducted the post-mortem. P.W.-2 Faguna informant and eye-witness P.W.-3 Nand Lal, P.W. 4 Afat Ram, Constable, who on the basis of written report prepared the chick FIR. P.W. 5 doctor S. K. Gupta, who examined the injuries of Km. Kusma at 9.00 p.m., P.W.-6 Investigating Officer, Sub-Inspector, Jag Jiwan Singh. The affidavit of one constable Ram Pratap Singh was also filed in evidence. 4. P.W. 1 Doctor S. K. Singh proved the post-mortem report, who conducted the post-mortem on 6.3.1981 at about 3.00 p.m. The injuries on person of deceased on face and neck were found stiched and for conducting post-mortem report examination stiches were cut. According to post-mortem there were 24 injuries. The death was due to shock and haemorrhage as a result of injuries. Semi digested food was found in small intestine and in large intestine faecal matter was present. In uterus watery fluid seman was present. According to statement of the doctor, injuries were caused by sharp edged weapon and that was possible by Khurpi also. In view of the fluid found in the uterus, according to doctor after causing injuries, even the rape might have been committed. P.W.-2 Faguna, father of the deceased supported the FIR version and proved the FIR, which was exhibit Ka-2. According to him when there was delay he went to see his daughter towards onion field. According to him, he asked what was the matter, then she replied that accused appellant was assaulting her by Khurpi. He ran towards the place of incident raising alarm. According to him when there was delay he went to see his daughter towards onion field. According to him, he asked what was the matter, then she replied that accused appellant was assaulting her by Khurpi. He ran towards the place of incident raising alarm. Nand Lal reached there having torch and he flashed the torch and other witness Bhaggu and his wife reached there. They saw that appellant was assaulting Km. Kusma by Khurpi. Thereafter, he ran away from the spot. He was chased but they could not apprehend him. The blood was coming out from her injuries. P. W. 3 Nand Lal is also eye-witness. According to him after hearing the cry he reached on the spot and when he flashed the torch, he saw that accused appellant was assaulting deceased Km. Kusma. He informed that the torch was seen by the investigating officer, fard was prepared and it was returned to him. He has prepared the recovery memo of torch, which is exhibit-Ka-3. P.W.-4 constable, Afat Ram was head Moharrir on 5.3.1981 at P.S. Husain Ganj, District Fatehpur and he proved that 9.30 a.m. written report was submitted by the Faguna and chick FIR was prepared by him, which was proved and the same is exhibit Ka-4. The FIR was registered regarding which G.D. Entry was made as GD No. 15. It was proved as exhibit Ka-5. P.W.1, doctor S. K. Singh, who examined the injuries on 9.00 p.m. at 4.3.1981 on deceased Km. Kumsma stated that there were 20 injuries, however, regarding injury No. 20 it has wrongly been mentioned as injury No. 19. All the injuries were caused by sharp edged weapon except injury No. 19. In cross-examination when injured Km. Kusma was brought to his hospital she was unconscious and on the same night she succumbed to injuries in the hospital. The Khurpi, which was placed before the Court was about 4 cm. and the injuries might have been caused by sharp edge knife or kanta. However, subsequently, he clarified that by repeated assault on the same place, injuries can be caused by Khurpi also, and injury No. 9 is 11.5 cm. X 1.00 cm. X 6.00 cm. Above sternal notch and was reaching trachia bone deep fresh bleeding was present. 5. and the injuries might have been caused by sharp edge knife or kanta. However, subsequently, he clarified that by repeated assault on the same place, injuries can be caused by Khurpi also, and injury No. 9 is 11.5 cm. X 1.00 cm. X 6.00 cm. Above sternal notch and was reaching trachia bone deep fresh bleeding was present. 5. Learned counsel for the appellant submitted that there is a contradiction in the statement and appellant was falsely implicated due to enmity and suspicion. In fact, it was a dark night on the date of incident and no one has seen the incident. According to P.W. 2 informant, father of the deceased it was a dark night incident and there was no source of light before alleged eye-witness P.W.-3 reached on the spot having torch on his hand. P.W.-3 is a chance witness. He was resident of different Mauja (village) and there was dispute with him for irrigation of land with the appellant. Admittedly land of the appellant was near the land of P.W.-3 Nand Lal and in cross-examination Nand Lal has admitted that he had criminal history. In his statement he stated that he was falsely implicated by the villagers and he had also falsely implicated 2-3 persons. The irrigation was by the canal and for irrigation of the agricultural field when he cut the flow of water in his agricultural field he was assaulted by appellant Baij Nath. He stated that when he flashed the torch the appellant ran away after leaving Km. Kusma. However, further stated that he saw appellant when he assaulted by Khurpi to injured Km. Kusma. He stated that he saw that Baij Nath had put her leg on Km. Kusma and was assaulting her. According to him it was a moon light though according to P.W. 2, father of the deceased, it was dark night. 6. According to P.W.-2 father of the deceased when he reached Km. Kusma was alive but he has not stated that she narrated the incident before him. Though according to P.W.-3 she narrated the incident. According to him she was conscious. If trachia itself was cut it is unbelievable that she was able to speak. According to P.W. 3 she told that when appellant caught hold her for criminal assault. Kusma was alive but he has not stated that she narrated the incident before him. Though according to P.W.-3 she narrated the incident. According to him she was conscious. If trachia itself was cut it is unbelievable that she was able to speak. According to P.W. 3 she told that when appellant caught hold her for criminal assault. She raised objection and said that there was no difference in between daughter of our father and daughter of uncle. Thereafter, he started assaulting by Khurpi. There was no such statement given by her before her father though he reached first. Hence it appears that no body has seen the incident. The unknown persons assaulted her. Subsequently, her father and other witnesses reached on the spot they thought that it was a case animal bite that is why she was taken for Jharfook, before she was taken to hospital. It was informed to the doctor S. K. Gupta (P.W.5) by father that she was biten by Sujava (Hyena) animal though it was not noted on the injury report prepared by him and he told this on the basis of his memory. This is also corroborated with statement of D.W.-1 Motilal that injured was firstly taken at his door on the apprehension that she might have been victim of bitch and ghost. Though he was tailer but he was also doing the treatment by ‘Jharphook’. He informed that she was biten by Sujava. Then he advised that there were injuries hence she should be taken to hospital. The injury report does not support that she was biten by animal but because no one has seen the incident hence this was apprehension of the informant that she might have been biten by animal, however, no information was given to the police. Had the witnesses seen the incident firstly the information might have been given to the police or by the doctor to the police. The entry was made in the accidental register in the hospital by the doctor, who examined her. There was delay in lodging the First Information Report. The witnesses reached on the spot at the time of incident, which is in between the 6.30 to 7.00 and FIR was lodged next day morning at 9.00 a.m. There was some allegation against deceased Km. Kusma by appellant Baij Nath regarding her chastity though it was denied by P.W.2. There was delay in lodging the First Information Report. The witnesses reached on the spot at the time of incident, which is in between the 6.30 to 7.00 and FIR was lodged next day morning at 9.00 a.m. There was some allegation against deceased Km. Kusma by appellant Baij Nath regarding her chastity though it was denied by P.W.2. The semi digested food was found hence it appears that the incident had not taken place, as mentioned in the First Information Report and statement of witnesses because according to statement of P.W. 1 his family took meal at 12.00 noon and the evening food was being prepared. The presence of fluid seman in the uterus suggested that either by assailants or some one establish physical relationship before or after she was assaulted. He again submitted that according to statement of appellant recorded under Section 313 Cr.P.C. he was aged about 18-19 years. He is on bail and if he was minor on the date of incident conviction is liable to be set aside because the statement was recorded after one year of the incident. Hence he would be entitled for benefit under the Juvenile Justice Act. 7. Learned AGA vehemently opposed and submitted that there were two eye-witness father of the deceased and one Nand Lal. There were two other witnesses, however, they have not been examined mother and one Faggu. Both the witnesses clearly proved that they saw the incident when they reached on the spot because appellant was assaulted deceased Km. Kusma and when they reached and challenged then he ran away from the spot he was well known to the witnesses hence they identified him even if there was no sufficient light but there was light of torch in the present case. The injuries on hand and other part of the body clearly shows that she struggled with the assailants and tried to save her. The injuries on hand and other part of the body clearly shows that she struggled with the assailants and tried to save her. When her father went to see her and reached on the spot and when the alarm was raised other witnesses also reached on the spot and without any delay she was taken to hospital as far as the D.W.-1 is concerned, according to witnesses his house was not away to the hospital hence injured might have been taken and at his door but this has been denied by P.W. 1 and that she was taken for Jharphook to remove the effect of bitch and ghost. This was introduced in defence by the D.W. 1 and he himself suggested that injured was biten by Sujava (Hyna). In view of the fact the prosecution has proved the case beyond doubt hence the present appeal is liable to be dismissed. 8. Considered the submission of learned counsel for the parties and perused the record. No doubt the incident took place in which deceased Km. Kusma was assaulted but in view of the injuries there was suspicion whether she was assaulted with Khurpi or not she went to bring onion from her field for cooking hence presence of Khurpi on the spot is natural. In view of statement of two doctor as well as from perusal of injury report, it is doubtful that injuries, might had been caused by Khurpi, specially the injury No. 4, 8cm. x 2 cm. through in the mouth cutting whole wall on right cheek. Injury No. 9, incised wound 11.5 cm x 1 cm x 6 cm above sternal notch leaking air trachea is incised x bone deep. Fresh bleeding present. Injury No. 11 incised wound round in shape 8 cm x 1 cm x bone deep on posterior aspect of right palm. The sharp edges portion of Khurpi, normally, will be less than 8.c.m. The injury No. 9, could not be caused by Khurpi. According to doctor if there is repeated assault on the same place then that might be caused, however, if there is repeated assault there that will not be exactly on the same injuries and the injuries are clearly incised the wound caused by sharp edged weapon. 9. According to doctor if there is repeated assault on the same place then that might be caused, however, if there is repeated assault there that will not be exactly on the same injuries and the injuries are clearly incised the wound caused by sharp edged weapon. 9. P.W.1 when reached there on the spot, according to him it was a dark night and there was no light subsequently, after hearing the cry and alarm P.W. 3 Nand Lal reached there alongwith torch but when flashed toruch and they challenged the appellant, he left Km. Kusma and ran away. When he reached near deceased Km. Kusma appellant had already reached at a distance of 15-20 steps, then in the dark night whether it was possible to see and recognize the person from 15-20 steps and further when in view of the injuries in which trachia was cut, whether she was in position to raise alarm or speak before the witnesses. The enmity with appellant from Nand Lal P.W. 3 is admitted. The enmity was also suggested in cross-examination that since the appellant defamed her by making allegation, hence the family of the deceased must have been annoyed. Had appellant been seen by witnesses this might have been disclosed to the doctor and FIR might have been lodged without any unreasonable delay. There is no reason to disbelieve the statement of doctor as it was informed to him by the informant father of the deceased that she was biten by Sujava (wild animal). She was brought to the house of D.W.1 Motilal to remove the effect of bitch and ghost if any. Had he seen the incident the natural conduct would be to rush to the hospital immediately for medical aid. There was no reason or occasion to take rest at the door of D.W. 1. It was admitted by the witnesses that she was taken at the door of D.W. 1. According to him (P.W. 1) it was dark night and he had not heard the cry at his house due to distance then false implication cannot be ruled out because in the present case P.W.-2 Nand Lal is a chance witness coupled with the fact that he has enmity with the appellant. According to P.W. 2, Nandlal alleged Eye-witness he was falsely implicated by number of person and he had also falsely implicated 2-3 persons. According to P.W. 2, Nandlal alleged Eye-witness he was falsely implicated by number of person and he had also falsely implicated 2-3 persons. He was resident of diffirent village. There is doubt whether deceased was assaulted by appellant with Khurpi or some unknown person assaulted and when witnesses reached, she was found unconscious. 10. In view of the injury report and opinion of doctor as far as the blood stain Khurpi is concerned, if the khurpi was there with deceased then in view of the multiple injuries and bleeding, presence of blood on khurpi would not be unnatural and some of the injuries might have been caused by Khurpi also. If the statement of P.W. 2 is disbelieved then it was a dark night. It appears when witnesses went to search deceased Km. Kusma and when reached on the spot, then she was found in unconscious condition and thereafter she was taken to the house of D.W.1 and on his advise she was taken to hospital. These situation creates the prosecution case suspicious and doubtful. Hence since prosecution failed to prove the case beyond reasonable doubt hence giving the benefit of doubt to the appellant, the impugned judgment and order of conviction and sentence is liable to be set aside. Hence the judgment and order of conviction dated 4.3.1982 is hereby set aside. Appellant Baij Nath is acquitted of the charges under Section 302 IPC. Accordingly, present appeal is allowed. The sureties are discharged. ———————