IMPORTANT POINT
The prosecution must establish charges beyond reasonable doubt, especially when witness credibility is in question.

ORDER :

To challenge the judgment dated 3rd January 2013 passed in Sessions Case No.23 of 2009, the State of Rajasthan has filed this acquittal appeal under section 378 of the Code of Criminal Procedure.

2. The case of the prosecution is narrated by Mohd. Hussain in the Parcha Bayan dated 1st April 2009. According to the informant, his younger brother Naseeb was married to Ashiya in the family of Kalu Khan at Naseerabad. On the date of the incident, the accused persons arrived at the house of the informant in the dead of the night and inquired about Ashiya who at that time was sleeping in the power house. This is also stated by the informant in the Parcha Bayan that his parents, wife and sister were sleeping in a room at the power house. At around 2:00 am in the intervening night of 31st March/1st April 2009, the accused persons armed with lathi (lakkadiya) and Kundale came there and started assaulting the parents of the informant. On hearing halla, when his brother Naseeb came there he was also assaulted by the accused persons. The informant further stated that when his neighbours, namely, Lala Ram Mali and Tulcha Ram came there the accused persons fled away on a Maruti van. On the basis of the statement given by Mohd. Hussain, a crime was registered vide F.I.R. No.64/2009 under sections 143, 451, 323 and 149 of the Indian Penal Code. Three days after the occurrence, Smt. Barkat Bai died and therefore the offences under sections 324, 325, 307, 460 and 302 of the Indian Penal Code were added in the report.

3. While the case was pending, Kalu Khan passed away on 5th March 2010 and Lala Ram also died on 21st December 2010 and accordingly the prosecution against Kalu Khan and Lala Ram was closed.

4. To establish the charge against Seema @ Samma Bano, Panchu, Basheer Khan and Lala Ram under sections 148, 460 and 302 of the Indian Penal Code; in the alternative under sections 302/149, 307 or 307/149, 325 or 325/149, 324 or 324/149 and section 323 or section 323 read with section 149 of the Indian Penal Code as framed against them, the prosecution laid evidence through 26 witnesses and produced 56 material objects and documents.

5. On behalf of the accused persons, Sultan was produced as D.W.1 and certain documents were laid in evidence to demonstrate that they were implicated in the criminal case on account of past animosity.

6. Having regard to the materials brought on record in Sessions Case No.23/2009, the Sessions Court framed the following issues:

English Translation:

“………..1-Whether the accused broke into the house of the complainant Mohammad Hussain at night?

2-Whether the accused formed an unlawful assembly and in fulfillment of the general objective of the said assembly, hit the deceased Barkat Bano with a blunt weapon with an intention of killing her due to which, she died?

3-Whether the accused, being the members of the said unlawful assembly, hit the injured Naseeb with a sharp weapon and caused him simple injuries?

4-Whether the accused, being the members of the said unlawful assembly, hit the injured with a blunt weapon and caused simple and grievous injuries to them?

5-If yes, then what punishment do the accused deserve..?….”

7. After hearing the learned Public Prosecutor and the learned counsel for the defence, the Sessions Court rendered its opinion that the prosecution was not able to establish the charge under sections 149, 460, 325, 324 or 302 of the Indian Penal Code. However, the accused-respondents were convicted for committing the offence under sections 148 and 323 of the Indian Penal Code and were given benefit under section 4(1) of the Probation of Offenders Act 1958 on a condition that each accused furnishes a personal bond to the tune of Rs.2,000/- and a surety of the like amount. Also, the accused-respondents were directed to deposit Rs.1,000/- under section 5 of the Probation of Offenders Act before the Court for Prosecution expenses.

8. Challenging the aforesaid judgment rendered in Sessions Case No.23 of 2009, Mr