Judgment:
M.L. Visa, J.
1. This appeal by the two appellants is preferred against the judgment and order dated 15-1-1987 passed by Additional District & Sessions Judge, VI, Munger convicting and sentencing the appellants to undergo imprisonment for life under Sections 304 of the Indian Penal Code.
2. The prosecution case in short is that on 4-10-81 at 9 p.m. Madan Prasad, who was also one of the accused persons and faced trial along with appellants but has been acquitted, came to the house of informant Shiv Shankar Prasad (P.W. 5), situate at Mohalla Dalmati Naya Bazar, Lakhisarai, P. S. Lakhisarai, District Munger, caught hold of the collar of the shirt of the informant and started dragging him out of his house. When the informant inquired from Madan Prasad the reason of his dragging Madan Prasad told him that he would tell it outside the house. The informant was brought by dragging to the 'darwaja' of his house where his father was sitting and in the meantime, the two appellants also came there and they along with Madan Prasad started assaulting the informant and his father. The mother of the informant also came there. It is further alleged that appellants and Madan Prasad threw the father of the informant on ground and started assaulting him with brick and stones causing injuries on his head and chest as the result of which father of the informant became unconscious. The witness Dev Nandan Prasad (P.W. 6) reached there and saw the occurrence and he was also assaulted by Madan Prasad. In the meantime, villagers Om Prakash, Ramdeo Sao, Upendra Sao, Achhebar Sao, Parmeshwar Sao, Mathura Sao etc. came there and thereafter the appellants and Madan Prasad fled away. Father of the informant was immediately taken to Lakhisarai Hospital but he died. The Fardbeyan of informant was recorded at Lakhisarai Hospital on 4-10-81 at 11-30 p.m. and the police after investigation submitted charge sheet under Sections 304/34/323, IPC against the appellants and Madan Prasad. The cognizance of the case was taken by S. D. J. M. Lakhisarai on 18-1-83 and the case was committed to the Court of sessions where charge under Sections 304, IPC was framed against appellants and Madan Prasad, who all denied the charge and therefore they were put on trial and accordingly they have been convicted and sentenced to undergo imprisonment for life as stated above.
3. The defence of appellants before the Court belowwas total denial of charge framed against them. According to the appellants, they have been falsely implicated in this case.
4. In order to prove its case the prosecution has, altogether, examined six witnesses. Upendra Prasad Sah (P.W. 1), who according to the FIR was an eye-witness of the occurrence, has not supported the case of the prosecution and has been declared hostile. Om Prakash (P.W. 2) has been tendered. Shiv Shankar Prasad (P.W. 5) is the informant, Yashoda Devi (P.W. 3) is the mother of the informant, Savitri Devi (P.W. 4) is the wife of the informant and Deonandan Prasad (P.W. 6) is said to be eye-witness and was also assaulted by Madan Prasad.
5. Shiv Shankar Prasad (P.W. 5) the informant, has stated that at the time of occurrence he was sitting in the 'gali' of his house along with his wife and at that time his mother was working in the 'angan' of the house and his father was sitting on a cot at the 'darwaja' of his house when co-accused Madan Prasad came there and caught hold of him and started dragging him and has further stated that the appellants were present outside his house and thereafter some altercation took place between him and Madan Prasad and his father came there running and asked the appellants and Madan Prasad why they were behaving so, on which appellants and Madan Prasad assaulted his father with brick and stone causing injuries on his head and chest. He has further added that his wife and mother raised alarm on which about 25-30 persons assembled and then the appellants and Madan Prasad fled away. About his father he has stated that after receiving injuries he became unconscious and he was then taken to hospital where he died on the same day at 11 p.m. Yashoda Devi (P.W. 3) who is the mother of the informant and wife of the deceased has said that her husband was assaulted by the appellants and she did not see anybody else assaulting her husband. Savitri Devi (P.W. 4) the wife of the informant, has said that at the time of occurrence Madan Prasad entered her house, caught hold of her husband and took him outside the house by dragging where appellants and Madan Prasad started assaulting her husband and when her father-in-law, the deceased, who at that time was sitting on a cot outside the house, protested, he was also assaulted by the appellants and Madan Prasad by brick and stones as the result of which he became unconscious and when he was taken to hospital he died on the same day at about 11 p.m. Deo Nandan Prasad (P.W. 6) has said that at the time of occurrence he was in his house and on hearing 'hulla' from the house of informant when he came out of his house he saw the appellants and Madan Prasad assaulting the deceased with brick and stones and informant and his mother came there who were raising hulla and when he protested to the assault on the deceased, the appellants and Madan Prasad did not listen to him and when he caught hold of Madan Prasad he was assaulted by him by the butt of the revolver causing injury on his right eye brow. About the deceased he has said that he was taken to hospital where he succumbed to injuries.
6. In this case prosecution has not examined the I.O. and the doctor who had held autopsy. The defence has given suggestion to P.W. 3 Yashoda Devi that in her statement before the police she had not stated that the appellants had assaulted the deceased with brick and stone. Further suggestion given to her is that in her statement before the police she has stated that when appellants reached the place of occurrence they found the deceased in unconscious position and thereafter they simply remained standing there. Similarly the defence has given suggestion to Savitri Devi (P.W. 4) that she had not stated before the police that appellants and Madan Prasad had thrown the deceased on the ground and suggestion to Deo Nandan Prasad (P. W. 6) that he did not say earlier before the police that he was also assaulted. It is true that the aforesaid witnesses have denied the suggestions mentioned above given by the defence but then prosecution has not examined the I.O. for giving opportunity to defence to corroborate the aforesaid contradictions and it has definitely caused prejudice to defence because suggestions in this respect are on vital points. Madan Prasad who was one of the co-accused person and faced trial along with the appellants, has been acquitted by the trial Court considering the evidence of Yasoda Devi (P.W. 3), wife of the deceased where she has said that except the appellants she did not see anybody else assaulting her husband. Now there is suggestion by the defence to this witness that she did not state before the police that both the appellants had assaulted her husband, the deceased. The finding of the Court below that non-examination of the I.O. will simply mean that Savitri Devi (P.W. 3) did not see the actual assault but then there is evidence of informant and Deonandan Prasad (P.W. 6) supporting the case of the prosecution against the appellants, does not seem to be convincing. Yasoda Devi (P.W. 3), the wife of the informant, who has supported the case of the prosecution and is said to be present in her house where the occurrence is said to have taken place is a very important witness. Because the defence has not been given opportunity of corroborating the aforesaid suggestion given to this witness by examining the I.O. itcertainly affects the case of the prosecution and makes that part of evidence of this witness doubtful where she has named the appellants as assailants of deceased. To acquit co-accused Madan Prasad on the ground that the wife of deceased has not named him as assailant but to hold appellants guilty on the basis of doubtful evidence of the wife of deceased naming them will amount to apply double standard in dealing with the cases of similarly situated persons. Apart from it not only the attention of wife of the deceased but the defence has drawn attention of other witnesses also towards their contradictions in their earlier statements and in their evidence in Court.
7. The prosecution has further failed to examine the doctor who is said to have conducted post moterm examination on the dead body of the father of the informant. In absence of the examination of the doctor the cause of death of the deceased remains unknown. The allegation against the appellants is simply that they assaulted the informant and when the deceased, who was father of the informant, came to rescue of his son, he was also assaulted by the appellants with brick and stones. No witness has said how many injuries were inflicted on the deceased by the aforesaid actions of the appellants. It has not been brought on record that the deceased died of injuries inflicted on him by the appellants. There is suggestion by the defence to prosecution witness that deceased died of natural death due to disease. But as stated earlier, non-examination of doctor has not given any opportunity to defence of corroborating the aforesaid suggestion. So the cause of death of deceased remains in dark and uncertain and it is not established that death of deceased was homicidal. In view of this fact, the appellants cannot be held responsible for the death of deceased.
8. Considering the entire evidence on record I find that apart from contradictions in the evidence of prosecution witnesses on major issues including the location of the place of occurrence, number of persons participating in the commission of offence, non-examination of a number of independent witnesses named in the FIR, making the case of prosecution improbable in face of admission by prosecution witnesses that the Police Chowki and the place of occurrence is intervened only by two houses and still nobody going to Police Chowki to inform about the occurrence, non-examination of I.O. depriving the opportunity to defence of corroborating the contradictions in the earlier statements of prosecution witnesses and in their evidence in Court, the cause of death of deceased has not been brought on record by non-examination of doctor which finally cuts the root of the case of the prosecution. In view of these facts, the conviction of appellants cannot be upheld.
9. In the result, this appeal is allowed. The judgment and order of the Court below convicting and sentencing the appellants are set aside and the appellants who are on bail are discharged from the liability of their bail bonds.
R.N. Prasad, J.
10. I agree.