IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.772 of 2007 Against the judgment and order of conviction and sentence dated 27th of June, 2007 passed by Sri Shailendra Kumar Pandey, Additional Sessions Judge, FTC I, Sitamarhi in S.T. No. 289 of 2004. =========================================================== 1. Hasmat Rain, son of late Yusuf Master, 2. Kayum Rain, son of Hamid Rain, 3. Jamshaid Rain, son of Kayum Rain, all residents of village – Rain Tismala Tola, Rajopatti, P.S. & District - Sitamarhi .... .... Appellants Versus State Of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant/s : Sarvshri Mahendra Thakur & Shashi Bhushan Pandey, Advocates For the State : Shri Ajay Mishra, APP For the Informant : Sarvshri Devendra Kmar & Sheo Kumar Prasad, Advocates. =========================================================== PRESENT HONOURABLE SHRI JUSTICE DHARNIDHAR JHA -------- Dharnidhar Jha, J. The three appellants were charged under sections 307/149 etc. IPC by the Presiding Officer, Fast Track Court I, Sitamarhi and were tried together in S.T. No. 289 of 2004. By judgment dated 27.6.2007, appellant Hasmat Rain was acquitted of the charge under sections 307/149 and 307 IPC and was found guilty of committing offence under sections 147 and 324 IPC. The remaining two appellants were also acquitted of the charge under sections 307/149 IPC and were, in turn, convicted under sections 147 and 323 IPC. When it came to inflicting sentence upon the appellants, the learned trial judge directed each of them to 2 execute a bond for keeping peace and being of good behaviour for a period of one year. The appellants challenge the judgment of conviction and order of sentence. 2. The prosecution case is contained in Ext.2, the fardbeyan of P.W. 3 Munif Rain in which he stated that he had spread a blanket over a wall and after some time, he found that some one had put his bicycle by the wall and asked as to who was such a blind fellow who had ignored the spreading of blanket to put the cycle over it. It is stated that appellant Hasmat Rain stated that the wall was no body’s inheritence, upon which, the informant P.W. 3 Munif Rain stated that he had from his father. It ensued some exchange of words and a quarrel. As per allegations, all the appellants came together with lathi and started dealing blows to the informant and his wife (P.W.2). It is specifically stated that appellant Hasmat Rain fetched a tangi from his house so as to dealing a blow, as a result of which he was injured and fell down and the accused persons assaulted him and his wife again. It is stated that on account of the cries of the informant and his wife people were attracted to the scene of occurrence, who besides seeing it, also shifted the couple (P.Ws 2 and 3) to the hospital where he remained hospitalized for three days and ultimately gave his fardbeyan on 13.1.2004 in respect of the occurrence which had taken place on 9.1.2004 at about 2 P.M. 3. On the basis of Ext. 2, P.W. 5 SI Gorakh Nath Singh, who was posted in Mehsaul Out Post of Sitamarhi police station, was ordered by the Officer Incharge of the police station to take up investigation and, accordingly, he came to 3 the brick-laden road, which was the place of occurrence and inspected it. He did not find any blood anywhere at or around the place of occurrence which is understandable as the inspection of the place of occurrence was carried out on the 13th January, 2004, i.e., on the 5th day of the occurrence and on that account no mark of blood could be left on the thoroughfare. He requisitioned the injury certificates from the hospital and recorded the statement of witnesses and finding material sufficient, sent up the appellants for their trial which ended in the impugned judgment. 4. The defence of the appellant, as may appear from the suggestions given to P.W. 3 in paragraph 12, as also from the trend of cross examination of P.W. 2, was that there was some land dispute between the parties and on that account a false case had been foisted or the appellant had been implicated falsely. 5. During the course of trial, the prosecution examined as many as six witnesses and the defence produced one witness. As may appear from paragraph 8 of the impugned judgment, the learned trial judge had rejected the evidence of P.Ws 1 and 4 as not fit to be relied upon on account of the two witnesses not having seen the occurrence besides being closely related to the informant. So far as P.W. 2, the wife of the informant is concerned, as may appear from her own evidence in paragraph 5 of the cross-examination, she had made a statement before the police that at the time of occurrence she was inside her house and she came after hearing the halla and found that her husband was being assaulted by appellant Hasmat Rain 4 with chaila. This statement has been proved in the cross examination by P.W. 5 at paragraph 9, who stated that P.W. 2 had made the statement before him that at the time of occurrence she was inside her house and she came out after hearing halla. Thus, what appears from that particular line of the cross examination is that P.W. 2 may not be an eye witness. It is true that P.W. 2 is also an injured witness but that part of cross examination had to be confined only to the allegation against Hasmat Rain of giving single tangi blow on the head of her husband. In view of her above evidence given at the very initial stage of investigation, she could not be said to be the eye witness and her evidence could not be utilized for that purpose. 6. The learned trial judge has concluded in paragraph 12 and has observed that there was lack of sufficient and convincing evidence on record that appellant Hasmat Rain had dealt a tangi blow on the head of P.W. 3 and further there was a contradiction between the evidence of witnesses on that particular part of the story. The learned trial judge has also held that no independent witness had come forward to support any part of the prosecution story and, lastly, he had drawn adverse inference for non production of all 14 witnesses who were named in the charge sheet. 7. On consideration of the evidence of the informant, what I find is that he had stated that he was given solitary tangi blow on his head. P.W. 6, the doctor, after examining P.W. 3, issued Ext. 4, the injury certificate and has stated in evidence that he stated that he found two sharp cutting injuries on two different 5 parts of the body of P.W. 3. The learned trial judge held that the medical evidence was also in conflict with oral testimony of the witnesses and that further went to improbabilize the manner of occurrence. 8. This Court has, time and again, pointed out that if the medical evidence could be utilized by the prosecution for getting support on the manner of assault as alleged by it so as to convincing the court that the prosecution had succeeded in establishing the charge to the hilt, the use of the same evidence may also be made by the defence so as to showing that the conflict between oral and medical testimony was so material as to improbabilizing the manner of occurrence or assault. Here in the present case, P.W. 6, the doctor, had found two incised wounds on the head of the informant P.W. 3 against the prosecution story of a solitary blow with tangi being inflicted on the head of P.W. 3. There was no evidence available as to how the other injury with a similar weapon was caused and by whom. P.W. 6, the doctor, had also opined that chaila may also cause a wound which may look caused by a sharp cutting weapon. 9. In the light of the finding recorded by the learned trial judge after analyzing the evidence of witnesses and in the light of the discussion which I have made, I find that the order of conviction which was passed by the learned trial judge against the appellant is not sustainable. In the result, the appeal is allowed and it is held that the prosecution had not succeeded in proving the charges to the hilt and there was quite some scope for doubting the veracity of its story. The three 6 appellants are acquitted of the charge for which they have been convicted. They shall stand discharged from the liabilities of their bonds in pursuance to the order of sentence passed upon each of them. (Dharnidhar Jha, J.) Patna High Court, 14th November, 2011, NAFR/Anil/