CRIMINAL APPEAL No.72 OF 1989 (DB) Against the judgment of conviction and order of sentence dated 23rd December, 1988 passed in Sessions Trial No. 159 of 1986 by Shri Kailash Behari Verma, 9th Additional Sessions Judge, Arrah ********* HARENDRA SINGH SON OF SIA SHARAN SINGH RESIDENT OF VILLAGE- BIND GAWA, P.S.- BARHARA, DISTRICT- BHOJPUR……………………………………………..….APPELLANT VERSUS THE STATE OF BIHAR …. …………….RESPONDENT ****************** For the Appellant :-Mr. Deepak Kumar Sinha, Advocate Ms. Akhouree Jyotsna, Advocate For the State :-Mr. Dileep Kumar Sinha, APP ************************* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA S. K. Sharma & A. Chandra, JJ. The instant appeal, preferred on behalf of sole appellant, is against the judgment of conviction and order of sentence dated 23rd December, 1988 passed in Sessions Trial No. 159 of 1986 whereby the appellant was found guilty under Sections 302 and 324 of the Indian Penal Code by the learned 9th Additional Sessions Judge, Bhojpur at Arrah and he was sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and one year rigorous imprisonment under Section 324 of the Indian Penal Code. The sentences have been ordered to run concurrently in view of the provisions laid down 2 under Section 428 of the Criminal Procedure Code. 2. The prosecution case resulted on the basis of fard- beyan (Ext. 2) of Sharda Singh (PW 4) which was recorded at 9.45 A.M. on 20th July, 1985 at Sadar Hospital, Arrah by Sub- Inspector, Basudev Prasad Singh (not examined) in which Sharda Singh in injured condition stated that on the preceding date at about 4 P.M., at the door of Chowkidar Sitaram Singh (not examined) there was altercation between the informant’s brother Krishna Singh (deceased of the present case) and Harendra Singh (appellant). After that altercation the informant’s brother went towards the field to play football. At that time, the informant had also gone there along with his cattles and his cattles were grazing south of the football field. After the football game was over, the informant’s brother Krishna Singh (deceased) sat in the field. At about 6 P.M. he was sitting there, in the meanwhile the appellant having dagger, Siya Saran Singh (since acquitted) having Farsa and Mahendra Singh (since acquitted) having lathi also came. All the three accused chased the informant’s brother who tried to escape but Siya Saran Singh gave a Farsa blow which struck on the temporal region of the informant’s brother Krishna Singh. Thereafter, Harendra Singh, the appellant, has put obstruction by his leg as a result of which he fell down and the appellant allegedly struck a dagger blow upon the chest of Krishna Singh which caused death of Krishna Singh who was earlier assaulted by Mahendra Singh (since acquitted). The informant left his cattles and rushed towards his brother. This appellant and his father 3 ordered to kill the informant, thereafter, the appellant tried to kill the informant by means of dagger. The informant received injury on the left wrist and he escaped. The occurrence was witnessed by Hirday Singh (not examined) because at that time he was also there along with his cattles. The occurrence was also witnessed by Shiv Narayan Singh (not examined). Fard-beyan of PW 4 resulted into registration of Barhara P.S. Case No. 122 dated 20th July, 1985 under Sections 324, 302/34 of the Indian Penal Code and the case was investigated into. After investigation the chargesheet was submitted. Subsequently the case was committed to the court of Sessions where charges were explained to this appellant under Sections 302, 324 of the Indian Penal Code. Against Mahendra Singh charge was framed under Sections 302/34 of the Indian Penal Code whereas against Siya Saran Singh charge was framed under Sections 302/34/324 and 109 of the Indian Penal Code. 3. The appellant and other charged accused persons claimed their innocence, so the trial proceeded. In course of trial, the prosecution has examined 5 witnesses, namely, Shambhu Nath Singh (PW 1), Bir Singh (PW 2), Uday Singh (PW 3), Sharda Singh the informant (PW 4) and Surendra Singh (PW 5). 4. The defence has also examined one witness, namely, Murat Ram (DW 1). 5. Dr. D. N. Akela, who conducted post mortem examination, was not initially examined. The court thought his examination to be essential for the just decision of the case and under Section 311 of the Criminal Procedure Code Dr. D. N. Akela 4 was summoned and he was ultimately deposed as Court Witness No. 1. Besides the defence of false implication, another defence of the appellant was that on 18.7.1985 at 5.30 P.M., while the appellant was going to play football then he saw his buffalo was being thrashed and carried by Uday Singh (PW 3), Shambhu Singh (PW 1), Sharda Singh (PW 4), Krishna Singh (deceased), Bir Singh PW 1) and others. The conduct of those persons were opposed by this appellant on which Uday Singh instigated to assault the appellant and above named persons mercilessly assaulted the appellant for which he had to remain hospitalized for 23 days in the Government Hospital. The conduct of those persons resulted into registration of a case vide Barhara P.S. case No. 123 of 1985 under Sections 324 and 323 of the Indian Penal Code which was lodged on 20th July, 1985 at 3.30 P.M. against Uday Singh (PW 3), the informant Sharda Singh (PW 4), Bir Singh (PW 2), Shambhu Nath Singh (PW 1) and Krishna Singh the deceased. In that case the police after investigation submitted chargesheet against all the above named accused persons except Krishna Singh and that case was also pending for trial under Sections 326/34 and 324/323 of the Indian Penal Code. 6. PW 1 is Shambhu Nath Singh. He has not been named as a witness in the FIR. He has stated that at about 5-6 P.M. on 19.7.1985 the occurrence has occurred. He has seen injury upon Sharda Singh. In paragraph 2 of his deposition this witness has stated that he went to the place of occurrence and saw Sharda Singh injured. This witness is not an eye witness to 5 the occurrence and according to paragraph 3 of his evidence, he had gone to the place of occurrence after every thing was finished. In paragraph 9, he further explained that he has not seen any of the accused persons at the place of occurrence. Therefore, the evidence of PW 1 is of no help to the prosecution. 7. Similarly, PW 2 has stated that when he went to the place of occurrence then he saw Krishna Singh dead. The evidence of this witness is of no help to the prosecution because he is an hearsay witness and has not seen any part of the occurrence. 8. PW 3 is uncle of the deceased. He has stated that Sharda Singh has come and told that Krishna Singh has been stabbed to death by this appellant. Therefore, this witness being hearsay is of no help to the prosecution. 9. PW 5 is a formal witness and he has proved the formal FIR and signature on the formal FIR (Exts 3 and 2) respectively. 10. The Court Witness No. 1, Dr. D.N. Akela, has conducted the post mortem examination and has prepared its report (Ext. 4). According to the doctor, the death was due to ante- mortem injuries which are as follows: (i) “incised penetrating wound 2 ½” x 1” x Chest cavity deep on left side of chest, 1” medial and 1” downward towards left nipple, (ii) incised wound 1” x ½” x muscle deep on right side of chest, above right nipple. (iii) Incised wound 1” x 1/2 “ x bone deep on doresome of left hand, 6 (iv) Incised wound 1” x ¼” x muscle deep on right side of abdomen, (v) Lacerated wound 3” x 2” x bone deep on above left ear.” 11. Above noted Injury No. (v) was a lacerated wound 3” x 2” x bone deep on left ear. Specific case of the informant was that initially Krishna Singh (deceased) was struck on his temporal region by Garansa. Therefore, the version of the prosecution has not been supported by the doctor’s evidence because according to the opinion of the doctor, the injury no. 5 was such which could not have been caused by Garansa. 12. The only witness to the occurrence is thus, PW 4, who has described about the time of occurrence. He has seen Siya Saran Singh, Harendra Singh (appellant) and Mahendra Singh having Farsa, Lathi, Chura etc., and at that time Siya Saran Singh gave a Farsa blow which caused injury upon the temporal region of Krishna Singh. Krishna Singh tried to escape but he was chased and made to fall. Thereafter, he was stabbed by Harendra Singh. This witness, in his deposition, has improved his case from the fard-beyan and stated that Mahendra Singh later on assaulted Krishna Singh by means of lathi. The informant came to the house and told about the occurrence to Shambhu Singh, Uday Singh and Bir Singh. Thereafter, the informant went to the hospital where post mortem was conducted. He has stated that occurrence was witnessed by Hirday Singh, who has not been examined. The informant in his deposition has stated that he remained 7 hospitalized for 23 days but what type of treatment was provided to him was not brought on record. Hence this version of the informant is not to be looked into. 13. The prosecution case is now based on sole testimony of PW 4. No doubt, conviction can be passed upon the sole testimony of one witness, if such deposition remains intact and it gives enough credence to form sole opinion that the accused alone was liable to be convicted for offence and he only has committed the offence. Under the aforesaid circumstances the evidence of PW 4 has to be analyzed. 14. The case of the defence is that the appellant was admitted in State Dispensary Hospital, Mani Chapra and doctor has found following injury upon his person: (i) “Incised wound 2” x ¼” x Muscle Deep. (ii) One incised wound on dorsam right hand on medial side 1” x ¼” on nosal bridge (iii) Bruises ¼” x ¼” on nosal bridge (iv) Bruises ¼” x ¼” above injury no. iii (v) Incised wound on right side back 4” x ¼” x skin deep (vi) Abrasion hair line on it of 3” diameter. (vii) Swelling Bruises over right shoulder 2” x 1” (viii) Complaining of right thigh injury” 15. The doctor has reserved the opinion with regard to injuries nos. 1, 2, 4 and 7. Injury nos. 1, 2, 4 and 5 were caused by sharp cutting weapon and rest were by hard blunt substance. 16. The fard-beyan of the appellant resulted in a case 8 which has already been marked as Exhibit- A and the formal FIR has been exhibited as Ext. B. 17. After receipt of the X-ray report regarding the injuries of the appellant, the doctor has given the opinion that the appellant was having dislocation of right wrist, joint wrist shoulder. Injury no. 2 was dislocation of right wrist which was grievous in nature. Injury no. 3 was dislocation of right shoulder and that injury was also found to be grievous. 18. In this case the FIR was registered by the police on 20th July, 1985 at 1.30 P.M. The FIR was to be transmitted to the court soon after the registration of the case and the procedure of transmission has been described in the Criminal Procedure Code. The FIR has to reach before the court within 24 hours and if the time exceeds then it has to be seen as to whether the prosecution has been able to explain the delay which resulted into transmission and receipt of the FIR or not. The FIR has been received in the Court on 23.7.1985 i.e. after three days of the occurrence. Investigating Officer has not been examined, so this fact could not be explained as to what resulted in the delayed receipt of the FIR in the Court. The defence of the appellant that in fact, he was injured by assault which has not been explained by the prosecution and the onus was upon them to show the manner into which the appellant received injury on the same date and time of occurrence. 19. It has been submitted by the learned counsel for the appellant that the FIR was fabricated and subsequently sent 9 after five days. There is no explanation at all as to why the only two FIR named witnesses, namely, Hirdaya Singh and Shiv Narayan Singh who are alleged to be the only witnesses to the occurrence have been withheld by the prosecution. 20. If the evidence on record is scanned then it is apparent that the case is based on the sole testimony of PW 4. No doubt he has supported the prosecution case but the other witnesses who have also seen the occurrence along with the informant have not been examined by the prosecution and there is no reason at all as to why they were not examined by the prosecution. All the witnesses examined on behalf of the prosecution are hearsay witnesses and they have not seen any part of the occurrence. The prosecution has not been able to explain as to what prevented the prosecution for withholding the FIR to reach the court for three complete days. The Investigating Officer could only explain it but his non-examination has caused great prejudice to the defence. The injuries upon the appellant are grievous in nature. No doubt, minor injuries need not to be explained but if the injuries in the same transaction on other side is grievous then the prosecution has to explain it as to in what manner such injury was caused. This has also not been explained by the prosecution as to how the appellant has received grievous injuries on the same date and time. The treatment of the appellant was at Government Hospital and he had to remain hospitalized for his treatment for more than three weeks i.e. for about 23 days. The nature of injuries was that he was having dislocation of right 10 wrist and shoulder and it was certainly a grievous injury which has required longer treatment. Therefore, non-explaining of injuries on the appellant as well as non-examination of the Investigating Officer which could have explained to some extent the lacunae of the prosecution case, has given fatal blow to the prosecution version that the appellant has committed the occurrence as alleged. 21. The post mortem report also creates doubt, as the definite case of the prosecution is that the deceased was firstly struck by Siya Saran Singh by Garansa which caused injury upon temporal region of the deceased but the doctor has controverted it vertically and stated that injury upon the temporal region of the deceased was not caused by the weapon like Garansa or such. Therefore, this also creates doubt regarding the genuineness of the implication to the appellant. Two other accused persons who have faced trial along with the appellant were acquitted though overt acts were also against them. The injuries as alleged against them were also was found to some extent but in view of the case based on sole testimony of a witness and the injuries were not of much significance so they were acquitted. The appellant should have been given the same benefit because the eye witnesses were withheld. The witnesses examined by the prosecution were not named in the FIR and they were merely the hearsay witnesses. The doctor’s version has created doubt regarding the manner of assault. Two grievous injuries upon the appellant was not explained, there was delay of three days in receipt of the FIR in the 11 court and also that there is no further statement of the informant on the record and the Investigating Officer has not been examined causing grave prejudice to the appellant. 22. The doubts created in the implication of the appellant are many and these doubts will ultimately benefit the defence not the prosecution. 23. In view of the aforesaid discussions, we hold that the prosecution has not been able to prove its case beyond the shadow of all reasonable doubts. Accordingly, the appeal is allowed and the judgment of conviction and order of sentence is set aside. The appellant is acquitted from the charges and is discharged from the liabilities of his bail bonds. Patna High Court, Patna Dated 3rd December, 2010 Avin/N.A.F.R. (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)