The prosecution failed to prove its case beyond reasonable doubt due to inconsistencies in witness testimonies and procedural lapses, leading to the acquittal of the appellants.

JUDGMENT :

(Ashutosh Kumar, J.)

Nobody has been appearing for the appellants all this while, who are father and son respectively. We, therefore, requested Sri Anil Singh, learned Advocate to be the Amicus, to which he consented and has assisted us.

2. Both the appellants have been convicted under Section 302/34 of the IPC vide judgment dated 26.09.2018 passed by the learned Fast Track Court-II, Patna in S.T. No. 893/2005/199/2018, arising out of Phulwari Sharif P.S. Case No. 372 of 2004. By order dated 28.09.2018, they have been sentenced to undergo R.I. for life.

3. One Birendra Kumar is said to have been assaulted by one Niraj Kumar, who has been declared juvenile. That led to his death.

4. The FIR was registered by the father of the deceased viz. Prahlad Sharma (P.W. 7). He has lodged the written report addressed to the Inspector-cum-officer-in-charge of Phulwari Sharif Police Station on 29.05.2004 alleging that while he was present near his house at about 2.00 P.M. in the day, appellant/Vinod Sharma @ Vinod Singh along with appellant no. 2 and his two other juvenile sons viz. Niraj Kumar and Dhiraj Kumar came and started abusing his son/Birendra Kumar (deceased). When this was protested to, the appellant/Vinod is alleged to have ordered his sons to kill Birendra Kumar. On his orders, appellant no. 2 and Niraj Kumar caught hold of the deceased and Niraj Kumar gave him a lathi blow on his head, as a result of which Birendra Kumar got seriously injured and fell down. The accused persons thereafter started assaulting him by fists and slaps. On hulla, many persons of the neighbourhood arrived who tried to save the deceased. However, it was observed by all of them that the victim had become unconscious. He was taken to Rajeshwar Nursing Home, Patna, a private hospital, where he was admitted.

5. At the time of writing of the written report, his condition was reported to be serious.

6. With respect to the cause of occurrence, P.W. 7 has disclosed that while cutting the dried-up Sheesham Tree belonging to him, the overhead illegally drawn electric wire of the appellants was damaged and that was the reason for the appellants to come over to the house of P.W. 7 and attacked his son.

7. It appears that after the death of the deceased on 31.05.2004 at about 6.00 A.M. in Rajeshwar Hospital, another fardbeyan was lodged by P.W. 7 in which some more details were provided.

8. However, with respect to accusation against the accused persons, there was no major difference except that in the second fardbeyan, referred to above, a specific reason was assigned for the occurrence viz. the damage to the overhead electrical wire of the accused persons while a dried up Sheesham tree was being felled.

9. Both the fardbeyans were amalgamated in the same case viz. Phulwari Sharif P.S. Case No. 372 of 2004 dated 29.05.2004, which initially was registered for investigation under Sections 307, 341, 323 and 34 of the IPC. Section 302 of the IPC was added vide order dated 01.06.2004.

10. During the course of investigation, the police found the allegations against the appellants and two other sons of appellant no. 1 to be true. However, only the appellants have faced the Trial, as the two other sons of appellant no. 1 viz. Niraj, the main assailant and Dhiraj were found to be juvenile and therefore their cases were sent to respective Juvenile Justice Board for determination of the guilt.

11. There is no reference of the outcome of such determination with respect to the two juveniles, in the judgment impugned in the present appeal.

12. At the Trial, sixteen witnesses were examined on behalf of the prosecution and one on behalf of the defence.

13. Based on the aforenoted materials, the Trial Court has convicted and sentenced the appellants as aforesaid.

14. The learned Amicus/Mr. Anil Singh, Advocate has argued that the case is absolutely false. To buttress this contention, he has drawn the attention of this Court to Ext.-1, the first fardbeyan lodged by P.W. 7/informant wh