JUDGMENT : Heard learned Amicus Curaie appearing for the appellant and learned Additional Public Prosecutor for the State. 2. The instant Criminal appeal is directed the Judgment of conviction dated 23.09.2003 and order of sentence dated 25.09.2003, passed in Sessions Trial No.19 of 2003 passed by the learned 1st Addl. District & Sessions Judge, Latehar, whereby the sole appellant has been charged under Section 302/34 of the Indian Penal Code and has been convicted under Section 304 Part II of the Indian Penal Code and has been awarded rigorous imprisonment for seven years and a fine of Rs.3000/- and in case of default in payment of fine, simple imprisonment for one year. However, both the sentences are directed to run concurrently. Being aggrieved by and dissatisfied with the impugned judgment of conviction and order of sentence, the instant Criminal Appeal (Jail) has been preferred before this Court on 16.01.2004 and amicus curiae was appointed and vide order dated 11.10.2004, the sentence of the appellant was suspended and the appellant was released on bail, since then the matter is pending before this Hon'ble Court. 3. The brief facts of the prosecution case, as stated in the 'fardbeyan' of the informant, Geeta Devi (P.W.6), wife of the deceased (Bahadur Ram) recorded by the Officer-in-charge, Barwadih Police Station on 24.06.2002, alleging therein, that at 13 hours, her husband (Bahadur Ram), aged about 45 years, has gone along with his maternal uncle, Tuna Ram on 19.06.2002 in the evening for dinner. Her husband did not return in the night and in the morning, her husband came having injuries on head and back, who disclosed that Tuna Ram (S/o Maloki Ram), Baijnath Ram, Rajnath Ram, and Shivnath Ram, all three sons of Tuna Ram have assaulted him and because he was not able to walk in the night, he did not returned in the night and fell on a cot. The informant has alleged that because of scarcity of money, no medical assistance was provided to her husband nor any information was given to the Police. Her husband has disclosed to her that the accused, Tuna Ram has assaulted him alleging that he had illicit relation with his widow daughter-in-law. The informant has alleged that because of scarcity of money, no medical assistance was provided to her husband nor any information was given to the Police. Her husband has disclosed to her that the accused, Tuna Ram has assaulted him alleging that he had illicit relation with his widow daughter-in-law. The informant has further stated that on 24.06.2002 (Monday), her husband died at 8.00 a.m. Thereafter information was given to the co-villagers and other members of the family as the last rites has to be performed, but the villagers asked her to inform the Police and thus, came to the Police Station. On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report being Barwadih P.S. Case No. 36 of 2002, dated 24.06.2002 under Sections 302/34 of the Indian Penal Code. 4. After investigation, the Police submitted charge-sheet vide Charge-sheet No.63 of 2002 dated 24.09.2002 under Sections 302/34 of the Indian Penal Code against Tuna Ram, Baijnath Ram and Sivnath Ram. So far accused, Rajnath Ram is concerned, he being a child, aged of 8-10 years, has not been sent up for trial. 5. Cognizance of the offence has been taken vide order dated 25.09.2002 and the case has been committed to the Court of Sessions, vide order dated 17.02.2003, but the case of accused, Baijnath Ram and Sivnath Ram has been separated as these accused persons were found to be juvenile and thus, the accused-appellant, Tuna Ram has been separately tried in this case. Charge has been framed against Tuna Ram under Sections 302/34 of the Indian Penal Code on 5th March, 2003. The appellant pleaded innocence and thus put on trial. 6. The prosecution in order to prove its case has examined altogether 12 witnesses. Vijay Yadav has been examined as P.W.1, Tapeshwar Bhuiyan has been examined as P.W.2, Birju Bhuiyan has been examined as P.W.3, Rameshwar Ram has been examined as P.W.4 and Sudan Bhuiyan has been examined as P.W.5. All (P.Ws.1 to 5) are hearsay witnesses. Their deposition has no evidentiary value so far as appellant, Tuna Ram is concerned, as they have said, that they have heard that Bahadur Ram died. Bhuneshwar Ram has been examined as P.W.8. This witness is also a hearsay witness. 7. The most important witness (Geeta Devi) and wife of the deceased has been examined as P.W.6. Their deposition has no evidentiary value so far as appellant, Tuna Ram is concerned, as they have said, that they have heard that Bahadur Ram died. Bhuneshwar Ram has been examined as P.W.8. This witness is also a hearsay witness. 7. The most important witness (Geeta Devi) and wife of the deceased has been examined as P.W.6. Budhan Bhuiyan, father of the deceased has been examined as P.W.7. These two witnesses have supported the case and have stated, that her husband, Bahadur Ram was taken by the accused-appellant, Tuna Ram for dinner. In the night, Bahadur Ram did not returned and in the morning, he returned with injuries on his head and other parts of the body and disclosed that he has been assaulted by the Tuna Ram and his sons by tieing with rope and after three days of occurrence, Bahadur Ram (deceased) died. 8. P.W.6 (Geeta Devi) and P.W.7 (Budhan Bhuian) have categorically stated that they have heard the same from the injured (Bahadur Ram) and after death of Bahadur Ram, the case has been filed. 9. Binod Ram, has been examined as P.W.9. This witness is cousin of the deceased (Bahadur Ram) and he came along with father after hearing about the death of Bahadur Ram. This witness has also seen the injury on the head caused by tangi upon the deceased. During cross-examination, this witness has stated that he got information about death of his brother at 7.00 to 7.30 a.m., but they have not heard about the allegation of teasing of the widow (daughter-in-law) of Tuna Ram by the deceased prior to his death. 10. Bansi Ram, has been examined as P.W.10. This witness is also a hearsay witness. During cross-examination, this witness has stated that the deceased (Bahadur Ram) used to fell down after taking liquor and the people used to bring him to his house. This witness has further stated that after taking liquor, whenever he fell down, he sustained some injuries, which were treated at the house itself not by the Doctor. 11. Dr. Dilip Kumar, Deputy Superintendent, Sub-Divisional Hospital at Latehar, has been examined as P.W.11. He is the Doctor who performed the post-mortem examination of the dead-body of Bahadur Ram on 24.06.2002 at 5.30 p.m. The body was identified by Chowkidar No.1/12, Iswari Paswan. The Doctor found the following injuries on the person of the deceased. 11. Dr. Dilip Kumar, Deputy Superintendent, Sub-Divisional Hospital at Latehar, has been examined as P.W.11. He is the Doctor who performed the post-mortem examination of the dead-body of Bahadur Ram on 24.06.2002 at 5.30 p.m. The body was identified by Chowkidar No.1/12, Iswari Paswan. The Doctor found the following injuries on the person of the deceased. (i) Rigor mortis present in lower limb, absent in upper limb. (ii) Following ante-mortem injuries. Multiple browses present over the abdominal wall. Time since death was within 4 to 6 hours and proved the post-mortem report as Exhibit-1 which was prepared in his handwriting and signed by him (P.W.11). During cross-examination, the Doctor has admitted that on the exterior part of the body, there is no injury from hard blunt substances. 12. Mr. Amod Narayan Singh, Investigating Officer of the case, has been examined as P.W.12. This witness has proved the 'fardbeyan' written in his handwriting and the signature and marked the same as Exhibit-2. Endorsement of writer constable, Krishna Mohan Singh on the First Information Report has been marked as Exhibit-2/A and the inquest report prepared in his handwriting and signature of Vijay Kumar Yadav (P.W.1) and thumb-impression of Rameshwar Ram (P.W.4) and the inquest report as Exhibit-3. 13. After closure of the prosecution evidence, the statement of the appellant under Section 313 Cr.P.C. has been recorded, but no defence witness has been examined on behalf of the defence. 14. Mr. Surajdeo Munda, learned Amicus Curiae, appearing for the appellant has submitted, that the entire prosecution case is based upon hearsay statement of the deceased before his wife, P.W.6 (Geeta Devi), Budhan Bhuiyan (P.W.7), father of the deceased. The other witnesses being P.Ws.1 to 5 and P.W.8 are hearsay, who have heard from Geeta Devi (P.W.6), wife of the deceased. 15. Learned Amicus Curiae has further submitted, that from the evidence of P.W.6 (Geeta Devi) and P.W.7 (Budhan Bhuian), wife and father of the deceased, vital contradictions have been found in the prosecution case. The other witnesses being P.Ws.1 to 5 and P.W.8 are hearsay, who have heard from Geeta Devi (P.W.6), wife of the deceased. 15. Learned Amicus Curiae has further submitted, that from the evidence of P.W.6 (Geeta Devi) and P.W.7 (Budhan Bhuian), wife and father of the deceased, vital contradictions have been found in the prosecution case. These two witnesses have said that they saw head injury upon the person of the deceased, which has not been found in the inquest report rather, the inquest report shows that there was a old scratch mark on the forehead, which has been marked as Exhibit-3 and the post-mortem report shows that the deceased died because of ante-mortem injury, which is multiple bruises over the anterior abdominal wall and the same has been marked as Exhibit-1. The Doctor who has been examined as P.W.11, namely, Dr. Dilip Kumar has also admitted, that he did not found external injury on the person of the deceased and as such, learned amicus curiae has submitted, that the prosecution has miserably failed to prove the guilt against the appellant, as such, the appellant is entitled for benefit of doubt. 16. Learned Amicus Curiae, in support of his submission, has submitted, that Bansi Ram (P.W.10) has also stated, in the Court during his cross-examination, that the deceased (Bahadur Ram) used to take liquor and after taking liquor, he used to fell down and sustain injury and with the help of the villagers, Bahadur Ram (deceased) was brought to his house and the deceased was treated at his house itself and not by the Doctor. So deceased had such conduct. 17. Learned Amicus Curiae has submitted, that the same thing has happened, but there is some animosity with maternal uncle, the informant (P.W.6) and father of the deceased, Budhan Bhuian (P.W.7) have falsely alleged against Tuna Ram and his three sons who are minors. Learned Amicus Curiae has further submitted, that it is unbelievable that a person sustained such serious injury so that he cannot walk in the night and when he came in the morning and remained alive for three days, no villager was informed about the occurrence, nor to the Chowkidar and nor to the Police Station by the informant or father of the deceased. Under such background, it is a fit case where benefit of doubt be given in favour of the appellant by setting aside the impugned judgment of conviction and order of sentence passed by the learned trial court. Learned amicus curiae has further submitted, that the case only instituted after death of the deceased (Bahadur Ram). No prior information was given to the village chowkidar or to the Police Station. The evidence of P.W.6 and P.W.7 is not worth to put reliance for convicting a person as their evidence is contrary to the medical evidence. So far head injury and tieing with rope are concerned. 18. Mr. Vikash Kishore, learned Additional Public Prosecutor appearing for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed on the basis of the material available on record and there is nothing, which warrants interference of this Hon'ble Court, but when attention of the learned Additional Public Prosecutor was drawn with respect to the evidence of the informant (P.W.6, Geeta Devi), evidence of P.W.7 (Budhan Bhuiyan) and Post-mortem report (Exhibit-1) and inquest report (Exhibit-3), learned counsel for the State could not explain the same from the materials on record coupled with the fact that the evidence of P.W.10 who has not been declared hostile by the prosecution. Mr. Vikash Kishore, learned Additional Public Prosecutor has fairly submitted, that the Doctor has found no external injury although as per the allegation made by the prosecution, deceased (Bahadur Ram) has stated before his wife (P.W.6) and his father, Budhan Bhuiyan (P.W.7) that he was assaulted after tieing with rope by the accused, Tuna Ram and his sons. Learned Amicus Curiae has submitted that this part of the prosecution case is also not corroborated with the post-mortem report and the Doctor has not found any head injury on the person of the deceased. 19. Having heard Mr. Surajdeo Munda, learned Amicus Curaie, appearing for the appellant, Mr. Vikash Kishore, learned Additional Public Prosecutor, appearing for the State and on perusal of the materials available on record including the fardbeyan, deposition and the Exhibits, this Court is of the opinion that the prosecution has not proved the guilt of the appellant beyond all reasonable doubt. Having heard Mr. Surajdeo Munda, learned Amicus Curaie, appearing for the appellant, Mr. Vikash Kishore, learned Additional Public Prosecutor, appearing for the State and on perusal of the materials available on record including the fardbeyan, deposition and the Exhibits, this Court is of the opinion that the prosecution has not proved the guilt of the appellant beyond all reasonable doubt. The medical evidence (Exhibit-1) and Exhibit-3 are not in consonance with the evidence of the informant (P.W.6- Geeta Devi) and P.W.7 (Budhan Bhuiyan), who have been informed by the deceased- Bahadur Ram in the morning, but the Doctor has not found any external injury on the person of Bahadur Ram, during his post-mortem examination, as alleged by these two hearsay witnesses. This Court is also satisfied to the extent that there is no evidence on record except the statement of P.W.6 (Geeta Devi) and P.W.7 (Budhan Bhuiyan) and cannot be relied upon for conviction of the appellant that the accused, Tuna Ram has taken Bahadur Ram for dinner to his house on 19.06.2002 rather, it appears that multiple bruises over anterior abdominal wall, which may be caused because of fall after taking liquor and it further gets strengthened from the evidence of P.W.10 (Bansi Ram). 20. Thus, this Court is of the opinion that prosecution has not been able to prove the case beyond all reasonable doubt against the appellant, Tuna Ram as no information either to any villager or Chowkidar was given for three days and only after death, case has been instituted and medical report is not in consonance with evidence of P.W.-6 (Geeta Devi), wife and P.W.7 (Budhan Bhuiyan), father of deceased, as such, benefit of doubt is granted in favour of the appellant, Tuna Ram. 21. Hence, the Judgment of conviction dated 23.09.2003 and order of sentence dated 25.09.2003, passed in Sessions Trial No.19 of 2003 by the learned 1st Addl. District & Sessions Judge, Latehar, is hereby set aside. 22. The appellant, who is on bail, is discharged from the liability of his bail bonds. 23. In the result, this Criminal appeal stands allowed. 24. Before parting with, the assistance rendered by the learned amicus curiae, Mr. Surajdeo Munda to the Court is worth appreciable. The Member Secretary, Jharkhand State Legal Services Authority is directed to pay remuneration payable to him within three weeks from the receipt /production of a copy of this judgment. 25. 23. In the result, this Criminal appeal stands allowed. 24. Before parting with, the assistance rendered by the learned amicus curiae, Mr. Surajdeo Munda to the Court is worth appreciable. The Member Secretary, Jharkhand State Legal Services Authority is directed to pay remuneration payable to him within three weeks from the receipt /production of a copy of this judgment. 25. Let a copy of this judgment be communicated to the learned Member Secretary, JHALSA for needful. 26. Let L.C.R. along with a copy of this judgment be sent to the court concerned.