JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. 1. Heard Sri A.K.S. Bais, learned counsel for the appellant, Sri Pradeep Rai, learned A.G.A. assisted by Sri Sharad Srivastava, learned brief holder for the State and perused the record of this appeal. 2. Learned counsel for the appellant has submitted that the appellant is in jail since 5.9.2009, and remained in jail during the trial. The appellant, was sentenced to serve out the sentence of seven years' R.I. was admittedly, taken into judicial custody, on the day of delivery of judgment i.e. 5.9.2009, and, his bail application no. 6282 of 2009, was rejected by this Court, vide order dated 28.3.2011, thus, he remained in jail ever since the delivery of judgment on 5.9.2009 by the trial court. In this view of the matter, the accused appellant has already suffered entire sentence of seven years' R.I. but mere sufferance of sentence of imprisonment and release pursuant thereto, would not ipso-fact, render this appeal ineffective or infructuous, hence, the parties were heard on the merit of this appeal. 3. By way of instant Criminal Appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 05.09.2009 passed by Additional Sessions Judge, Court no.4, Saharanpur, in Sessions Trial No.73 of 2009 concerning Case Crime No.376 of 2008, under Section 304 part II IPC, Police Station- Kutubsher, District- Saharanpur, whereby the accused-appellant- has been sentenced seven years R.I. for offence under section 304 Part-II IPC. 4. Brief facts, as unfolded by first information report appear to be that first information report was lodged by the informant Jagmohan Rajak- a neighbour of the accused on 2.10.2008 at 7.45 P.M. at Police Station Kutubsher, whereby it was alleged that today at about 7.00 P.M. the appellant was under impression that his daughter Km. Rachana, aged about 15 years was haunted by some evil spirit, beaten her with hard wooden stick, as a result of which, she sustained serious injuries and she was taken to the hospital. Request was made for lodging the report and taking appropriate action. This written report is Exhibit Ka-1. 5. Entry of contents of written report was noted in the concerned check F.I.R. at 7.45 P.M. on 2.10.2008 at Case Crime No.376 of 2008 u/s 308 I.P.C., Police Station- Kutubsher, District- Saharanpur, which is Ex.Ka.3. Request was made for lodging the report and taking appropriate action. This written report is Exhibit Ka-1. 5. Entry of contents of written report was noted in the concerned check F.I.R. at 7.45 P.M. on 2.10.2008 at Case Crime No.376 of 2008 u/s 308 I.P.C., Police Station- Kutubsher, District- Saharanpur, which is Ex.Ka.3. On the basis of above entries a case was registered in the concerned G.D. against the appellant vide Rapat No. 32 and under aforesaid section of Indian Penal Code against accused- Lala Ram. Copy of G.D. is Ext. Ka.-4. 6. Record reflects that injured- Kumari Rachna was medically examined by Dr. Keshav Swami- P.W.-7 on 2.10.2008 at S.B.D. District Hospital, Saharanpur at 8.00 P.M., wherein following injuries were noted:- (1) A lacerated wound of 8 cm x 0.5 cm x bone deep on the left side ear far from 7 cm. X-ray advised. (2) Traumatic swelling each 6 cm x 4 cm both side on forehead. X-ray advised. (3) A lacerated wound of 4 cm x 0.5 cm x bone deep. Kept under observation. X-ray advised. (4) Bleeding fresh of nose. Kept under observation. X-ray advised. (5) A lacerated wound of 3 cm x 1 cm x bone deep and around 6 cm x 2 cm traumatic swelling. 7. Injuries were found to be fresh. The patient was kept under observation and X-ray was also advised. This injury report has been proved by Dr. Keshav Swami- P.W.-7 and the same is Exhibit Ka-12. 8. The case was investigated into by S.I. Anil Kumar Malik P.W.6, who after taking down the contents of F.I.R. and the concerned G.D., inspected the spot and recorded the statements of informant Jagmohan Rajak, victim- Kumari Rachna and Smt. Jamuna (mother of the victim). During course of investigation, he arrested the accused- Lala Ram and recovered blood stained vest of accused and prepared the memo of the same, which is Exhibit Ka-10. He also recovered the wooden plank, by which the appellant caused injuries to Kumari Rachna, the memo of the same was also prepared, which is Exhibit Ka-11. As the investigation progressed the information of death of victim- Kumari Rachna was received by the I.O. On 4.10.2008, therefore, Section 304 IPC was added, he converted the case n place of 308 IPC. As the investigation progressed the information of death of victim- Kumari Rachna was received by the I.O. On 4.10.2008, therefore, Section 304 IPC was added, he converted the case n place of 308 IPC. The I.O. Inspected the spot and on the pointing out of Smt. Jamuna wife of accused Lala Ram, prepared the site plan, which is Exhibit Ka-7 on record. 9. Inquest of the dead body of deceased- Rachna was prepared on 3.10.2008 at PGI, Chandigarh. The inquest was completed at 11.00 A.M. on 03.10.2008. Inquest report is Exhibit Ka-2. In the opinion of inquest witnesses and the Investigating Officer, it was thought proper to send the dead body for postmortem examination so as to ascertain real cause of death. Therefore, relevant papers were prepared, which papers are Exhibit Ka-14 to Ka-22. Thereafter the dead body was sent for postmortem examination at Mortuary PGI Chandigarh and postmortem report was conducted the same day 3.10.2008. Autopsy started at 2.15 P.M. and completed at 4.30 P.M. 10. The Investigating Officer also took note of the postmortem examination. Genuineness of the same has been admitted by the defence, therefore, the same was exhibited as Exhibit Ka-8. 11. Thereafter this witness I.O. Anil Kumar Malik P.W.6 was transferred to another police station and the investigation was taken over by some another competent police officer, but he has not been produced as subsequent Investigating Officer before trial court. After completing investigation, the Investigation Officer filed charge-sheet against accused- Lala Ram. Genuineness of the charge-sheet was also admitted, therefore, the same was Exhibited Ka-23. 12. Pursuant to the filing of the charge-sheet, committal proceeding took place and the case was committed to the court of Sessions. As a sequel to that, this case was made over for trial and disposal to the Court of Additional Sessions Judge, Court No.4, Saharanpur after it was numbered as S.T. Nos.73 of 2009 (State Vs. Lala Ram). The appellant was heard on point of charge and the trial court was, prima facie, satisfied with the case under Section 304 IPC against the accused-appellant. Therefore, it framed charge against the accused-appellant under the aforesaid section of Indian Penal Code. Charge was read over and explained to the accused, who abjured charge and opted for trial. 13. The prosecution, in order to prove guilt of the accused examined as many as seven prosecution witnesses. Therefore, it framed charge against the accused-appellant under the aforesaid section of Indian Penal Code. Charge was read over and explained to the accused, who abjured charge and opted for trial. 13. The prosecution, in order to prove guilt of the accused examined as many as seven prosecution witnesses. Brief reference of the prosecution witnesses is ut-infra:- Jamuna Devi P.W.1 is the mother of the victim. She has not supported the prosecution version. Jagmohan Rajak P.W.2 is the informant and he has turned hostile and has not supported the prosecution story. Sri R.K. Sinha P.W.3 is the witness of fact, similarly Jagdish P.W.4 is also witness of fact. Both these witness have turned hostile. Lal Yadav P.W.5 is the inquest witness and has proved preparation of the inquest report Exhibit Ka-2. Anil Kumar Malik S.I. P.W.6 is the I.O., he has conducted part of the investigation and has prepared the site plan besides recording statement of various witnesses. Dr. Keshav Swami P.W.7 has medically examined the victim on 2nd October 2008 and has proved the medical examination report, Exhibit Ka-12. 14. Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, he termed his implication false and stated that his daughter fell down on the street due to which she sustained injury and died. 15. No evidence whatsoever was led by the defence. 16. The trial Judge after hearing both the sides and considering merit of the case passed aforesaid judgment of conviction and sentence. 17. Consequently this appeal. 18. It has been vehemently contended on behalf of the appellant that in this case even an iota of evidence does not exist in order to justify conviction of the appellant under section 304 Part-II, I.P.C. He stresses that not a single witness of fact has stated any thing proving complicity of the appellant in the commission of the crime in question. It is further argued that the victim was suffering from mental delirium as well as mental phobia as a result of which, she fell down from the roof and sustained fatal injuries causing her death. In his statement, P.W.-2, Jagmohan Rajak has categorically stated that he was asked and compelled to write the report as per dictation given by the police personnel and accordingly, he scribed the report on the dictation so given by the police. In his statement, P.W.-2, Jagmohan Rajak has categorically stated that he was asked and compelled to write the report as per dictation given by the police personnel and accordingly, he scribed the report on the dictation so given by the police. He has denied that any such incident had taken place before him at the relevant point of time. 19. Similar is the case with other important and relevant witness, who happens to be none other than the mother of the victim Jamuna Devi- P.W.1. She too has categorically stated in her examination in chief that some evil spirit haunted the girl due to which on the date of incident, she started surprising by her unexpected activity like beating herself on the wall and climbing on the roof from where, she jumped and fell down and after sustaining injury, she became senseless. P.W.1 Jamuna Devi, has also categorically denied the fact about occurrence of such incident as alleged in the FIR. There is no other reliable testimony to corroborate the manner and style of the occurrence in question, but, even then, the learned trial judge unreasonably,unjustifiably and without proper adjudication and application of judicial mind, recorded finding of conviction under section 304-Part II I.P.C. which finding cannot be sustained on the face of it to convict the appellant. 20. Learned A.G.A. while refuting the above contentions advanced by the learned counsel for the appellant, has submitted that it may be correct that none of the witnesses has supported the ocular testimony and description contained in the FIR to the effect that the assault was caused to the victim by none other than the father of the victim but in the instant case it appears that the prosecution witnesses have been won over by the P.W.-1 -Jamuna Devi- who is wife of the appellant and this may be one of the solid reasons for the other prosecution witnesses of fact in not supporting the prosecution case. Although, the circumstances conclusively point out fact that the FIR was not lodged by the appellant himself, or P.W. 1 Jamuna Devi- who are parents of the victim, but it was lodged by P.W.2- Jagmohan Rajak- a neighbour of the appellant. This fact by itself suggestive of complicity and involvement of the appellant in the commission of the crime described in the FIR. This fact by itself suggestive of complicity and involvement of the appellant in the commission of the crime described in the FIR. Further, inaction on the part of appellant is self- speaking in the circumstance of this particular case. In these circumstances, the learned trial judge was fully justified in recording the finding of conviction of the appellant vide impugned judgment and order which is wholly justified, legal and sustainable in the in the eyes of law. 21. I have anxiously considered the rival submissions advanced by both the parties. 22. The moot point that arises for adjudication of this appeal relates to fact whether the prosecution has successfully established charge under Section 304 IPC beyond all reasonable doubt? 23. On perusal of the record, it is apparent that the incident took place around 7.00 P.M. on 2.10.2008 and it has been alleged that victim-Rachna was assaulted by the accused by stick/wooden plank whereby victim sustained serious injuries. The victim was taken to the hospital for treatment and she was medically examined by Dr. Keshav Swami P.W. 7, who has proved the medical examination report (Ext. Ka.-12), wherein, as many as five injuries have been noted at the time of medical examination. This doctor witness (P.W.7) has clarified that all the injuries sustained by the victim cannot be said to have been sustained only by way of falling down from the roof, but some of the injuries can be sustained by falling down from the roof. He has also specified in his opinion that the injuries caused on the nose of the victim can only be caused when the injury has been caused by some hard blunt objection. These injuries are numbered as injury no. 4 and 5 in the medical examination report. But the testimony available on record, does not support the version of the prosecution as alleged that these injuries were caused only by the appellant. P.W.-1 Jamuna Devi, P.W. 2-Jagmohan Rajak, P.W-3 R.K. Sinha, and P.W.-4 Jagdish who are the witness of fact in the aforesaid incident have testified on different line than the one set- up by the prosecution. 24. All the prosecution witnesses of fact have not supported the prosecution case and particularly fact that assault was caused and victim was injured by the accused Lala Ram. 24. All the prosecution witnesses of fact have not supported the prosecution case and particularly fact that assault was caused and victim was injured by the accused Lala Ram. In the cross-examination done by the prosecution nothing concrete of sort has emerged which may give any thrust or credence to the prosecution story. Consequently the conviction of the appellant cannot maintained on such shaky evidence. 25. It is trite law that in cases where the witnesses turn hostile, their testimony cannot be brushed aside and discarded as a whole but the same must be evaluated carefully in order to reach at the just conclusion in determining involvement or non-involvement of the accused on the merits of the case. In this view of the matter, upon scrutiny of entire facts and evidence on record it comes out that the prosecution has not succeeded in bringing home the charge under section 304- Part II I.P.C. against the appellant beyond any shadow of doubt, but the learned trial court utterly failed to appreciate properly the evidence available on record and recorded finding of conviction, which finding is absolutely erroneous and cannot be sustained. Record shows that no evidence has been adduced depicting true picture on the role and involvement of the appellant in the alleged occurrence in question, rather, it appears deliberate attempt of the concerned police to colour the case against the appellant right from the time of occurrence upto the time when the victim reached the hospital for treatment and no endeavor was made by any one to record the statement of the injured victim for unearthing the truth about the role of the applicant in crime beyond doubt. 26. In the light of aforesaid discussion, the appeal succeeds and is allowed. The impugned judgment and order of conviction dated 05.09.2009 passed by Additional Sessions Judge, Court no.4, Saharanpur, in Sessions Trial No.73 of 2009 concerning Case Crime No.376 of 2008, under Section 304 part II IPC, Police Station- Kutubsher, District- Saharanpur, is set aside. Since the appellant has already suffered the entire sentence awarded to him, there is no need to pass any consequential order. 27. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.