Rajesh Kumar, J. - (1.) Heard Mr. A.K. Chaturvedi, learned counsel appearing for the appellant and Mr. Suraj Mohan, learned A.P.P. appearing for the State.
(2.) This appeal is directed against the judgment and order of conviction dated 22.02.2006 passed by Additional Sessions Judge, Fast Tract Court No.II, Civil Court, Jamshedpur in Session Trial No.15 of 2004, whereby and whereunder the appellant has been convicted for the offence under section 307 of the IPC and sentenced to undergo rigorous imprisonment for four years.
(3.) The appellant has been charged for the offence punishable u/s 307/34 of the Indian Penal Code along with other accused persons namely Sharda Devi, Raju Kumar Verma and Tilak Dhari Parsad Verma. The criminal proceeding has been put into motion by lodging an FIR by the informant namely Shyam Sundar Sao (P.W.2) dated 11.06.2003, wherein it has been disclosed that the appellant along with Sharda Devi, Raju Kumar Verma and Tilakdhari Verma @ Paparwala had entered into the house of the informant at 9.30 a.m. on 28.05.2003 and assaulted Malti Devi (P.W.3-wife of the informant). She has suffered head and leg injury and had been admitted to M.G.M. College Hospital and from there to T.M.H., Jamshedpur where she had remained unconscious for 15 days and discharged after 22 days. Fardbeyan had been taken in the hospital itself. The case has been put into motion on written report of the informant dated 11.06.2003 upon which FIR has been registered being Mango P.S. Case No. 171 of 2003 under sections 341, 323 and 307 of the IPC. After completion of investigation, charge has been framed under section 307/34 of the IPC against four named persons including the appellant. After completion of the trial, all the accused persons had been acquitted except the present appellant who has been found guilty under section 307 of the IPC and further sentenced to undergo rigorous imprisonment for four years. The prosecution to prove his story has examined altogether six witnesses. P.W.1-Jawahar Sahu is the landlord of the informant. He has been declared hostile as he has not supported the incident. P.W.2-Shyam Sundar Sao (the informant) has supported the F.I.R. but in his cross-examination he has admitted that he was out of his house and he had reached the place of occurrence after the incident and found that his wife, namely, Malti Devi was unconscious. Immediately, she has been shifted to the M.G.M. Hospital with the help of P.W.-6 Binod Gupta, who is cousin of P.W.3. P.W.3-Malti Devi is the victim and injured witness. She has stated that on 28.05.2003 at about 9:30 a.m., all the accused persons have entered into her house and she has been firstly assaulted by Tilak Dhari Parsad Verma on her leg by lathi and thereafter taking the same lathi Santosh Kumar Verma hit upon her head. As per her testimony, she has been beaten brutally and at least 5-6 blows has been given to her and due to injury she has become unconscious and has remained unconscious in the Hospital for 15 days. She has been discharged after 22 days. P.Ws.4 and 5 who are the Doctors, have proved the head injury of P.W.-3. As per the Doctors, there is single injury on the head and no other injury has been reported. The appellant has produced one defense witness, namely, Dr. B.V.K. Choudhary, who has examined Sharda Devi (mother of the appellant) and has proved one head injury and one lacerated injury on her right leg. It has further been alleged that Sharda Devi has been beaten by the informant and his family members on 28.05.2003 at about 8:30 a.m. by entering into the house of the appellant for which an F.I.R. has been lodged being Mango P.S. Case No.159 of 2003 dated 02.06.2003 which has been marked as Ext.-B. As per this F.I.R., the informant and his family members entered into the house of the appellant and has assaulted his mother. It has been admitted by both the parties in their evidence that there is a long standing land dispute between them and for which litigation is going on between them. From the evidence brought on record in the present case, it appears that two incidents have been taken place on 28.05.2003, one in the house of the appellant at about 8:30 a.m for which F.I.R. has been lodged on 02.06.2003 and another has been taken place in the house of the informant at about 9:30 a.m. for which the F.I.R. has been lodged on 11.06.2003. It further appears that from both sides, one female member has sustained injury. In the present case, Malti Devi is the only eye-witness. She has specifically stated that the appellant alongwith three other family members had entered into the house of the informant and has assaulted her brutally and at least 5-6 blows have been given upon her. Trial court has disbelieved the version of the P.W.3 and has acquitted all the accused persons except the present appellant. It appears that the present appellant has been convicted on the basis that there is injury on the head of the victim. It is not the case of the P.W.3 that the appellant has come alone and has given lathi blow on the head of P.W.3, rather it is a case of P.W.3 that the appellant alongwith three persons had entered into the house. Tilak Dhari Prasad Verma has given first blow on her leg and thereafter snatching the same lathi, the blow has been given by the appellant on her head. The presence of other accused has been disbelieved by court below. Thus , lathi which has been used by the appellant by taking from Tilak Dhari Prasad Verma also becomes doubtful. As per the version of P.Ws.3, 4 to 5 blows have been given indiscriminately by the appellant which does not get corroboration with the medical evidence. False implication of the appellant, who is a young member of the disputed family, cannot be ruled out. In the present case, the incident has taken place on 28.05.2003 while F.I.R. has been lodged on 11.06.2003. Further Investigating Officer of the case has not been examined. The place of occurrence has not been proved. Considering the entire material available on record, this Court finds that there is no sufficient material available on record connecting the present appellant with the charge under Section 307/34 of the IPC. Consequently, the conviction of appellant is not sustainable, and as such, this Court finds that the judgment and the order of conviction dated 22.02.2006 passed by Learned Additional Sessions Judge, Fast Track Court No.II, Civil Court, Jamshedpur in Session Trial No. 15/2004, is, hereby, set aside. Accordingly, the appeal is, hereby, allowed. Since the appellant is already on bail, he is discharged from the liability of his bail bond.;