The prosecution must establish guilt beyond reasonable doubt; significant contradictions in witness testimonies undermine credibility, resulting in acquittal.

JUDGMENT :

RAMESH CHAND MALVIYA, J.

1. Heard Ms. Akansha Malviya, Amicus Curiae for the appellants and Ms. Anita Kumari Singh, learned APP for the State.

2. The present appeal has been filed under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the judgment of conviction dated 19.12.2007 and order of sentence dated 20.12.2007 passed in Sessions Trial No. 399 of 2006 in connection with Barhat P.S. Case No. 42 of 2006 passed by learned Additional District and Sessions Judge, F.T.C-V, Jamui whereby and where-under the appellants have been convicted for the offence under Sections 323 , 307 read with 149 and 380 of the INDIAN PENAL CODE (hereinafter referred as ‘IPC’) and for the offence punishable under Section 307 read with 149 of the IPC sentenced to undergo rigorous imprisonment for 5 years and for the punishable under Section 380 of the IPC, sentenced to undergo rigorous imprisonment for 3 years and both the sentences shall run concurrently. No separate sentence has been passed under Section 323 of the IPC in view of conviction, sentenced under Section 307 of the IPC.

3. The brief fact leading to the filing of the present appeal on the basis of the written information of the informant, the complainant Urmila Devi gave a written application to the Superintendent in-charge, Jamui that Rameshwar Shah, Ayodhya Sah, Santosh Sah, Brijbhan Sah @ Lalu Sah, Bablu Sah, Vinod Sah, Deepak Sah, Pappu Sah and Sanjay Sah want to usurp her property, with this intention, two months ago her husband was badly beaten up due to which her husband fell ill, his treatment is still going on in Rajasthan. Three-four days ago, all of them abused her and beat her brutally, information of which was given in writing to the police station in-charge Barhat, then the in-charge of Barhat ordered an investigation and to took action under Section 107. Khata no. 88, Khasra no. 674, area 4 decimal is her residential land, the accused wanted to encroach it forcefully. On the night of 01.05.2006, around 10 labourers and 4 masons forcefully erected a pillar on our land overnight. When they went to ask about it in the morning, Rameshwar Shah picked her up and threw her down and all the members entered our house and started looting in her house. Rameshwar Shah and Bablu Shah together started strangulating them with the intention to killing them. Goda Devi, Sugiya Devi, Binwa Devi and many women came running and saved their life. The accused looted and took away sewing machine, 50 kg rice, 30 kg wheat and brass pitcher and other items.

4. Further on the basis of the written information of the informant, a case was registered in Barhat P.S. Case No. 42 of 2006 dated 02.05.2006 under Sections 341 , 448, 323, 504, 307 and 380 read with 34 of the IPC and after completion of investigation, investigating officer submitted the charge-sheet and learned Chief Judicial Magistrate has taken cognizance on 16.07.2006/17.07.2006. Thereafter, the case has been committed to the Court of Sessions on 23.08.2006

5. The prosecution examined altogether 6 witnesses to substantiate the charges levelled against the appellants, who are namely, PW-1 Sugi Sugiya Devi, PW-2 Guda Devi, PW-3 Birwa Devi, PW-4 Urmila Devi, PW-5 Chandrachara Ray (Investigating Officer) and PW-6 Dr. Vasisth Narayan Prasad (Doctor) and on behalf of accused/appellants one defence witness has been examined, DW-1 Suresh Tanti (Office Superintendent of Jamalpur Railway Factory).

6. PW-1 in her examination-in-chief stated that the alleged occurrence occurred 7 to 8 months ago at approx 7:00 to 8:00 AM. in the morning she reached at the place of occurrence after the fight started and saw that Vinod Sah, Sanjay Sah, Bablu Sah started assaulting the victim. Further she stated that they tried to strangle her by neck, Rameshwar Sah and Bablu Sah were strangulating her. A cloth sewing machine operated by leg, Rice, utensils, wheat was stolen. Deepu Sah, Pappu Sah, Vinod Sah, Sanjay strangl