JUDGMENT
Ravi Nandan Sahay, J.
1. Both the appellants have been convicted for an offence under Section 304, Part II of the Indian Penal Code and sentenced to rigorous imprisonment for five years by the 6th Additional Sessions Judge, Nalanda at Bihar Sharif, in Sessions Trial No. 103 of 1982/33 of 986.
2. The charge against the appellants was that on 14.4.81 at 8 a.m. they assaulted Parmeshwar Sharma resulting in his death. The conviction of the appellants is based on testimony of the informant, his wife and mother, who were found to be the eye-witnesses of the occurrence. The main witness who had seen the deceased being assaulted by the appellants was Brahmdev Manjhi who unfortunately was not examined at the trial. This Brahmdeo Manjhi had disclosed to the informant what has happened at Geraiyasthan, the place where the deceased was assaulted by the appellants. According to him in the morning of 15.4.81 the deceased had gone to give invitation in connection with functions relating to death to the village Fatehpur and Jagdlshpur. He was returning to his village. When he reached Geraiyasthan of his village Nirpur on 15.4.81 at 8 p.m. the appellants stopped him and asked as to why he was not getting time for the last 5 to 6 days to shave their beard. The deceased expressed his difficulty for want of time but at the same time he assured to shave them on the next day. Thereupon both the accused persons started abusing him and as such the deceased made a protest. Both the appellants test their temper and asked him as to how he did dare to do so being a barber and both started assaulting the deceased with their Dantas. Brahmdeo Manjhi was there. The informant admittedly was not there and this part of the fardbeyan is hear say and could not be taken into evidence in absence of examination of Brahmdeo Manjhi. Thereafter Brahmdeo Manjhi rushed to the house of the informant and told him what had happened to Garaiyasthan. Garaiyasthan was 175 yards from the house of the Informant. Both of them rushed to Garaiyasthan where they saw the deceased being dragged by the appellants to the Khalihan of one Ramjee Gope. Thereafter they gave Danta blow. At that time the villagers started to collect there. According to the post mortem report only four injuries were found on the deceased.
3. Dr. Uma Shankar Prasad. learned senior counsel for the appellants in his forceful argument placed the entire evidence and attempted to demonstrate that the witnesses who actually had seen the occurrence did not support the prosecution story and the informant’s wife and the informant could not have witnessed the occurrence which is apparent from the F.I.R. itself. The Informant in his fardbeyan has stated what transpired at Garaiyasthan between the appellant and the deceased. This happened in presence of Brahmdeo Manjhi, the person who rushed to the house of the informant and told him about the occurrence. It is apparent that the Jardbeyan was based on the statement of Brahmdeo Manjhi, who was not examined. For instance, the deceased expressed his inability as to why he could not shave Girdhari Mahton. The deceased was busy in connection with Satyanarayan Puja held in the house of his villager Sitaram Kahar and thereafter he was indisposed. Therefore, he could not get time to shave the accused Girdhari Mahton. This was to the knowledge of only Brahmdeo Manjhi alone which was incorporated in the fardbeyan.
4. None of the other witness who had seen the occurrence or come forward to support the case. The information has stated in his evidence that his wife come later, so the wife of the informant could not have seen the occurrence. The informant had not said that the appellants were standing at the place of occurrence after the occurrence. In my opinion it is doubtful whether the informant had seen the occurrence. Non-examination of Brahmdeo Manjhi was a fatal infirmity in the prosecution case. Wife of the informant accompanied her husband but in view of the evidence of the informant she cannot be held to be reliable.
5. In the result, the appellants are entitled to benefit of doubt reasonable doubt. The appeal is allowed and the conviction of the appellants is set aside. They are discharged from the liability of bail bonds.