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2015 DIGILAW 279 (PAT)

Awadhesh Ram v. State of Bihar

2015-02-10

DHARNIDHAR JHA, GOPAL PRASAD

body2015
JUDGMENT : DHARNIDHAR JHA, J. The appellant was convicted by the learned Presiding Officer, Fast Track Court-III, Patna, by the judgment dated 26th October, 2005 passed in Sessions Trial No.745 of 2001/ 60 of 2005 and was held guilty of committing the offence under Section 302 of the Indian Penal Code. After being heard on sentence, the appellant was directed to suffer rigorous imprisonment for life. 2. This appeal challenges the impugned judgment of conviction and order of sentence passed by the trial court upon the appellant. 3. The short facts leading to the trial and ultimately to the conviction of the appellant are that the informant, who lodged a report and who was examined as P.W 1, was not present in his house and his wife, with a 3 to 6 month’s child in her lap, was only there. The appellant who happened to be the full brother of the informant came and started giving blows with lathi to the lady Arti Devi (P.W.3). The appellant is said to have also given a single lathi blow to the little child lying in the lap of his mother, who was taken to the hospital but died in the way. The matter was reported to the police by giving the fardbeyan (Ext.3) of P.W. 1 and on that basis the F.I.R. of the case was drawn up and the case was ultimately sent up for trial by the police, which ended in the impugned judgment. 4. On perusal of the record as also the impugned judgment, it appears that no one had supported the allegation. The informant Satyendra Ram (P.W.1) or P.W.2 Bablu Kumar, yet another witness claiming to have witnessed the occurrence were also not coming to the support to the incident as an eye witness. P.Ws. 4, 5 and 6 were all declared hostile. 5. There is no dispute that, as may appear from the evidence of P.W. 7 Dr. Ashok Kumar Yadav, the little child had died of the injuries, but that may not be enough to convict the appellant unless there is support to the charge by legally admissible evidence. The support, as per the prosecution, was coming from the evidence of P.W. 3 Arti Devi, the mother of the child. Ashok Kumar Yadav, the little child had died of the injuries, but that may not be enough to convict the appellant unless there is support to the charge by legally admissible evidence. The support, as per the prosecution, was coming from the evidence of P.W. 3 Arti Devi, the mother of the child. The background of the incident was that there was some dispute between P.W.1 Satyendra Ram and the appellant who were full brothers, regarding partition of the properties and the appellant was pestering the informant for partition and, probably, dissatisfied with the attitude of P.W. 1, he had assaulted P.W.3 Arti Devi with lathi and then a single lathi blow to the little child was given. However, when we came to consider the depositions in the main, as we have already stated, we found no one had supported the prosecution than P.W. 3. However, what appears from the F.I.R. is that the F.I.R. was not leaving any room for implicating any one, either during investigation or trial. But, P.W. 3 was improvising the prosecution story by stating that not only the appellant had given several blows with lathi to her but also the wife of the appellant as also his two daughters had assaulted the lady. This being exaggeration as regards the initial story also appears implicating three persons as accused with separate allegation of assaulting the lady with danda, whose names ought not to have been anywhere on account of the confinement of the allegation against the appellant. This is one severe blow to the prosecution story. 6. The other jolt which we find being given to the prosecution case, is that in spite of being assaulted so severely with danda or lathi, as may appear from the evidence of P.W.3, the lady did not appear to have any injury. This we say on the fact that she did neither go to any doctor nor any doctor came forward to state that he had the occasion of examining P.W. 3 and he had found certain injuries on her person. The father of the child and other witnesses had not supported the story and an improvement appears made purposely to take revenge and out of revenge to add up names, like that of the appellant’s wife and his two daughters. Thus, we find it utterly unsafe to place reliance on the evidence of the witnesses. The father of the child and other witnesses had not supported the story and an improvement appears made purposely to take revenge and out of revenge to add up names, like that of the appellant’s wife and his two daughters. Thus, we find it utterly unsafe to place reliance on the evidence of the witnesses. As such, the appellant ought to have been acquitted after being accredited the benefit of doubt. 7. In the result, the appeal succeeds and the same is allowed. The judgment of conviction and order of sentence are hereby set aside and the appellant is acquitted of the charge. 8. The appellant Awadhesh Ram appears still being in jail. If he is still there, let him be released forthwith, if not wanted in any other case. Appeal allowed.