JUDGMENT :

(Nawneet Kumar Pandey, J.)

This appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 for setting aside the judgment dated 19.07.2019 and the order of sentence dated 22.07.2019 passed by the learned Additional Sessions Judge-III/Special Court M.P./M.L.A., Samastipur in S.T. No. 431 of 2011 arising out of Protest cum Complaint Case No. 851 of 2009, whereby the appellant has been convicted and sentenced as under:-

2. PW 5, Kabutri Devi is the informant of this case. She happens to be the sister-in-law (gotni) of the deceased Manju Devi. Her fardbeyan was registered on 07.08.2005. She has mentioned in her fardbeyan that on 02.08.2005, at about 8:10 in the morning, she was going to Bithan Bazar with her sister-in-law Manju Devi (the deceased). When they reached near Sirisia bandh, a white-coloured Marshal vehicle, came from the western direction. The persons, who were present in that vehicle, asked as to why the informant and her sister-in-law were not siding themselves from the way, despite the repeated horn-blows upon which Manju Devi replied that there was mud beside the road, which was the reason for not siding themselves. The appellant, who was known to the informant from before, got down from that vehicle. He started assaulting her sister-in-law with the butt of a gun in her abdomen and, on outcry, the appellant fled away in his Marshal vehicle. Initially, the victim was treated by a village doctor, but he referred the patient to Dr. Kamini Ray in Begusarai. As the condition of the patient remained deteriorating, Dr. Kamini Ray referred her to Sadar Hospital, Begusarai on 06.08.2005. The deceased died in the way to the hospital. She has mentioned further that PW 1, PW 2 and PW 3 had also seen the occurrence.

3. On the basis of fardbeyan given by PW 5, Bithan Hasanpura P.S. Case No. 164 of 2005 was registered on 07.08.2005 for the offences punishable under Sections 302/34 of the IPC and Sections 3(i) (x) (xi), 3(2)(v) of the SC/ST Act.

4. After registration of the FIR, the investigation was carried out, and on completion of the investigation, the police did not send up the appellant for trial and submitted final form against him. The Investigating Officer submitted charge-sheet against six other accused persons who were not named in the FIR, including PW 1 Anil Yadav and PW 6 Pradeep Yadav.

5. It is pertinent to mention here that two days prior to her death on 04.08.2005, a complaint was filed by Manju Devi, the deceased, for the same incident which is Exhibit-5. Since the police submitted final form against the appellant, Kabutri Devi, PW5, filed a protest petition, on the basis whereof, the cognizance was taken and the case was committed to the court of sessions.

6. It is pertinent to mention here that the persons against whom the police had submitted charge-sheet, including PWs 1 and 6, were put on trial and they were acquitted by the court of sessions, vide order dated 23.12.2011, passed in Session Trial No. 452 of 2011 since the court of sessions did not find evidence against them.

7. The charges were framed against the appellant for commission of the offence punishable under Section 302 of the IPC vide order dated 20.12.2011, to which the appellant pleaded not guilty and claimed to be tried.

8. In order to prove its case, the prosecution has examined altogether 8 witnesses including the informant Kabutri Devi, P.W. 5, who was with her gotni (the deceased) at the time of occurrence. PW 1 Anil Yadav and PW 6 Pradeep Yadav, who were made accused by the police and ultimately, acquitted by the sessions court, have deposed in favour of the prosecution. PW 7 is Doctor Ajay Lal, who conducted the postmortem on the dead body of the deceased. PWs 2, 3 and 4 were declared hostile. Ram Lagan Lal, PW 8, is a formal