IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.414 of 1989 Against the judgment and order of conviction dated 7th July, 1989, passed by Shri Narendra Kumar Lal, 4th Additional Sessions Judge, Gaya in Sessions Trial No.23 of 1988/354 of 1987 arising out of G.R. No.2153/85. ==================================================== Md. Ishaque Khan, Son of Late Md. Sattar Khan, resident of Village- Sohara, Police Station-Tetua (Arti), District-Gaya. .... .... Appellant. VERSUS The State of Bihar .... .... Respondent. ==================================================== Appearance : For the Appellant : M/s-Ashok Kumar Mishra, Varun Kumar, Pratibha Srivastava, Advocates. For the Respondent : Ms. Shashi Bala Verma, A.P.P. CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH & HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) ****** This appeal is directed against the judgment and order of conviction dated 07.07.1989, passed by the 4th Additional Sessions Judge, Gaya, in Sessions Trial No.23 of 1989/354 of 1987 wherein the sole appellant, Md. Ishaque Khan has been convicted under Section-302 of the Indian Penal Code (I.P.C.) for causing the death of one Md. Hassnain Khan @ Kallu Khan and he has been further convicted under Section-307 I.P.C. for attempting murder of the informant, Md. Jamal Khan (P.W.11). He has been sentenced to undergo rigorous imprisonment for life and five years respectively. The sentences had been ordered to run concurrently. The prosecution story starts with the fardbeyan of the informant, Md. Jamal Khan (P.W.11) recorded at the Belaganj Police Station at 1:30 am on 26.08.1985. It is alleged by the informant that in Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 2 - the night intervening between 25th and 26th August, 1985 when he was sleeping outside on a cot along with the deceased, Md. Hassnain Khan @ Kallu Khan, Md. Wasim Khan (P.W.7), Kafil Khan (P.W.4), Nanhu Khan (P.W.10), Wahid Khan (P.W.8) and Wali Khan, son of Wahid Khan at about 1 am in the night/morning he heard a close range gun shot fire. He got up. He then found the appellant aiming at him then shooting and injuring him. By the time second shot was fired others also got up after which the accused was chased who entered into the maize field and escaped. Upon return, it was found that Md. Hassnain Khan @ Kallu Khan had been shot in the head and was profusely bleeding. Villagers carried him on the cot itself to the Government Hospital, Belaganj whereas he in the injured condition was taken to the Belaganj Police Station on motorcycle by Ramjanam Singh (P.W.9) and Nanhu Khan (P.W.10) where his statement was recorded at 1:30 am. The reason for the shooting is that Md. Hassnain Khan @ Kallu Khan was instrumental in effecting partition of properties as between the appellant and his step brother, Raqibul Hassan to which the appellant was not agreeable. Appellant had sold all his properties in this village and was living with his father-in-law in another village. Both the appellant and Raqibul Hassan are brother-in-law of the informant. Upon this fardbeyan the case was immediately registered under Sections-307 & 324 I.P.C. and Section-27 of the Arms Act. The police took up the investigation and immediately on receipt of information of death of Md. Hassnain Khan @ Kallu Khan at the Belaganj Government Hospital Section-302 I.P.C. was also added to the case. The inquest report was prepared. Injury reports of the informant and that of the deceased when they first reached the Hospital were obtained. The appellant was later arrested. The case was investigated by Bishwanath Singh (P.W.14) but the chargesheet was Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 3 - ultimately filed by Braj Kishore Singh (P.W.12). The Court, having taken cognizance of the offence under Sections-302 & 307 I.P.C, committed the same to the Court of Sessions for trial. The appellant pleaded not guilty and was tried for the charge under Sections-302 & 307 I.P.C., as noted above, found guilty and convicted but no charge under Arms Act was framed at any point of time. In course of trial prosecution examined as many as 15 witnesses out of whom 5 claimed to be eye witnesses though we will presently show that 3 of them on their own deposition in the Court cannot be termed as eye witnesses, which leaves us only with two eye witnesses who again at best can be said to be witnesses to the shooting by the appellant upon the informant. There is no witness so far as the offence under Section-302 I.P.C. is concerned. The Trial Court apparently on presumption and assumption held him guilty of the said offence too which we would presently show was wrong. P.W.1 is Sanjay Kumar Singh who is a formal witness. He is an Advocate‟s Clerk and merely proves the first information report, Ext.1. P.W.2 is Satender Singh. He admits to be a hearsay witness and was instrumental in carrying the injured. P.W.3 is Bishundhari Manjhi who has been tendered. Kafil Khan, P.W.4 is the step brother of the informant, he is merely witness to the inquest report, Ext.2 and has not seen the shooting himself. Jalil Khan, P.W.5 is the father of the informant. He claims to be eye witness which, in fact, he is not. He is witness to the seizure list in respect of seizure of the front part of 0.315 bullet found under the cot on which the informant was sleeping. Seizure list is marked as Ext.3. What we found intriguing is Ext.3 seizure list. It does not give the time of seizure. This witness, being the father of the informant, P.W.5 admits that while all the people were sleeping outside in the Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 4 - „Dalan‟ he was in the house. He woke up on hearing the first shot. Immediately thereafter he heard the second shot. He then wore his spectacles and came out. He admits that he had cataract operation 10 years back and uses spectacles specially made for such bad vision. Though he claims to be an eye witness, he cannot be said to be eye witness on his showing and the Trial Court has rightly discarded his evidence. Then, we come to Azim Khan, P.W.6. He again is the seizure list witness to the seizure list, Ext.3. Now, we come to Md. Wasim Khan, P.W.7 whose evidence we would deal along with the informant as he and the informant are the two witnesses upon whom the Trial Court has relied for conviction. We then have Wahid Khan, P.W.8 he has been tendered. There is some importance in the deposition of P.W.7, Md. Wasim Khan and the informant which clearly gives out that Wahid Khan, P.W.8 has three brothers being sons of Dost Mohammad Khan. First is the deceased Md. Hassnain Khan, the second is Wahid Khan, P.W.8 and the third is Majid Khan. It is alleged in the deposition of the prosecution witnesses that appellant had come to the village and was staying with Majid Khan which fact is stated in the fardbeyan itself. Therefore, merely tendering Wahid Khan, P.W.8 and not examining Majid Khan would be of great importance. At this stage itself we may notice another aspect in the fardbeyan. It is stated that Wali Khan, son of Wahid Khan was also sleeping there. This Wali Khan has also not been examined. Then, we have Ramjanam Singh, P.W.9, though he is shown to be a witness in the F.I.R., all he says is that he had seen the appellant run away in the maize field. He was not a witness to any of the shooting. He is the person who carries the injured informant to the Police Station. He has clearly admitted in his examination-in-chief itself that he was sleeping in his house when he heard the two firing upon Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 5 - which he came out. Then, we have Nanhu Khan, P.W.10. He is the brother of the informant and claims to be eye witness. From the deposition of Md. Wasim Khan, P.W.7, it is apparent that after the appellant escaped in the maize field when Md. Wasim Khan, P.W.7 was returning he met Nanhu Khan and he disclosed the identity of appellant to Nanhu Khan. Nanhu Khan admits the fact that when he got up he met Md. Wasim Khan and talked to him. Thus, though Nanhu Khan claims to be eye witness, in fact, he is not an eye witness. Nanhu Khan is shown as an F.I.R. witness. In our view, both Ramjanam Singh and Nanhu Khan are witnesses to the fardbeyan but are not witnesses to the facts stated therein. At this stage itself, we may note that the statements, as made by these two witnesses, that is, Ramjanam Singh, P.W.9 and Nanhu Khan, P.W.10, are materially contradicted when the Investigating Officer, P.W.14 is examined. They have changed their story from their further statement as recorded in course of investigation. Now, we come to Braj Kishore Singh, P.W.12. He is the Assistant Sub-Inspector of Police, who on completion of investigation as done by Bishwanath Singh, merely filed the chargesheet. P.W.13 is Dr. Ramesh Kumar Roy, he is the In-charge Medical Officer of Belaganj Government Hospital who had first examined the injured informant and the injured Md. Hassnain Khan who later died. The injury reports are Exts.5 & 5/1. They are of some importance inasmuch as they have been prepared at 2:30 am and 2:40 am respectively. The injury reports are upon the slips sent by the police for preparing the injury report. There is no mention of any police case number or of station diary entry though the injuries are alleged to be gun shot injuries. The timing is also of some importance. Next, we have Dr. Mithilesh Kumar Sinha, P.W.15, who Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 6 - conducted the postmortem examination in respect of deceased Md. Hussnain Khan. Apart from other, what is significant is that he found a bullet injury on the head of the deceased and upon dissecting the head he extracted the bullet lodged in the skull. He preserved the bullet and sent it to the police for needful. This is of some significance because, as noted above, a bullet head was found allegedly at the place of occurrence, Ext.3 and this was the second bullet. The case of the prosecution had been that the appellant had fired both the shots in close proximity of time, but regrettably neither of the two bullets was produced in the Court nor in course of investigation any ballistic or forensic examination was conducted to establish that both shots were fired from the same weapon. What is more significant in the examination of this doctor is that he found charring bullet entry injury which is suggestive of a close range fire. Now, we are left with three important witnesses, that is, Md. Wasim Khan, P.W.7, the informant, Md. Jamal Khan, P.W.11 and Bishwanath Singh, P.W.14, the Investigating Officer. It is upon the deposition of these three witnesses that the Trial Court has rested its conviction. First, when we come to Md. Wasim Khan, P.W.7, at the very outset, one may note that though his further statement was recorded by the police he was not shown as a chargesheet witness notwithstanding the same he has been examined as prosecution witness. He claims to have identified the appellant as it was moon-lit-night and he claims to be the first person who chased the appellant. He states that the appellant was also sleeping in one cot nearby. This fact is not mentioned in the fardbeyan. All that was said in the fardbeyan is that the appellant was staying with Majid Khan, the brother of Wahid Khan, P.W.8 and the deceased. As noted above, Majid Khan or for that matter the son of Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 7 - Wahid Khan was never examined and Wahid Khan was merely tendered. There was another interesting part he discloses. He states in his deposition that when the appellant ran after firing the shots he left behind his shoes. What became of the shoes is not known. The Investigating Officer has neither seen nor seized shoes because in his deposition he has clearly admitted that when in the morning he reached the place of occurrence he found nothing there except one bullet head which he seized. We find great inconsistency in one part of his statement. In his cross-examination, he states that at 1:00 am he had reached the Government Hospital, Belaganj with Md. Hassnain Khan, the fatally injured. Police was also present there as they had apparently some prior information but he states that his statement was taken by the police at the Police Station when he returned from the Hospital. We find this to be surprising. Firstly, if at 1:00 am itself the fatally injured had reached the Hospital and the police was already there then it is that statement that ought to have been recorded in the first information report but unfortunately it is not so. The injured was examined on a requisition slip issued by the Belaganj Police Station which only means that the injured persons (both of them) were first taken to the Police Station and then brought to the Hospital. Once he was at the Hospital and police was present it remains unexplained as to why his statement was not recorded there itself. That apart in his deposition this witness has clearly deposed that as Md. Hassnain Khan was shot on the head he was profusely bleeding and there was trail of blood at the place of occurrence. What we find curious is when the Investigating Officer visits the place of occurrence immediately in the morning he does not find a single drop of blood any where in the vicinity. The only thing incriminating he finds is a bullet head of 0.315 bullet which he seized but did nothing further with it nor even produced the same in the Court. This creates serious doubt in Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 8 - the prosecution story. Now, we come to the informant, Md. Jamal Khan who has been examined as P.W.11. As noticed above, the fardbeyan is recorded at the Belaganj Police Station at 1:30 am on 26.08.1985 and the police case is also registered immediately. The two injured, that is, the informant and the fatally injured person, Md. Hassnain Khan were examined upon requisition sent by the police to the Hospital at 2:30 am and 2:40 am respectively. The requisition does not mention the case number. Md. Hassnain Khan dies and the information of which is received by the I.O. at the police station at about 3:30 am. This is the sequence which the Investigating Officer, Bishwanath Singh, P.W.14 gives in his deposition but when we come to the informant he changes the sequence. He states that first he went to the police station on a motorcycle. He was immediately sent to the Government Hospital as he was in an injured condition. After injury report was prepared, he and others returned to the police station where the fardbeyan was then recorded. If he is to be believed then it remains unexplained as to how the fardbeyan is shown to have been recorded at 1:30 am then how when the requisitions are sent by the police for the injury report, there is no mention of any „Sanha‟ entry or the police station case reference. When this is read with the positive statement of the informant, that the fardbeyan was recorded only upon return which statement appears to be correct and truthful, it falsifies the whole prosecution case and creates a serious doubt on it. From the deposition of the informant, it appears that the fardbeyan could have been only recorded after the death of Md. Hassnain Khan or at least after the injured were medically examined which gives informant and others time to make up a case. Now, we come to the Investigating Officer. The Investigating Officer curiously admits that at the place of occurrence, it Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 9 - is alleged that there had been profuse bleeding but no sign of blood or no sign of foot steps were found. He did not find any shoes kept there. He did not find any trampling in any maize field. What he did with the two bullets, one recovered in course of postmortem and the other he seized from the place of occurrence, God only knows. They were never produced in the Court. The Trial Court only held that the seizure, Ext.3 is proved. In our view, it is the seizure list that was proved and not the seizure, unless the seized commodity is produced. What is material is the seizure and not the seizure list. Seizure list is only a proof of the fact that a seizure had been made but what was seized can only be proved by production of that commodity. Unfortunately, neither of the two bullets were even produced in the Court nor were they examined by any ballistic expert or subjected to forensic examination to establish that they were fired from the same weapon. The result of the above discussion is, firstly that it is alleged that the appellant was staying with Majid Khan, who is the brother of the deceased, unfortunately, Majid‟s brother Wahid Khan has been merely tendered as P.W.8, his son who was also there as per the fardbeyan was not even examined. Majid Khan was not even examined. This creates a doubt whether, in fact, the appellant was present there at all. The appellant has clearly in his statement under Section-313 Cr.P.C. stated that he was not there at all and has been falsely implicated. Suggestions have been given by the defence that merely because the appellant was not ready to sell some land to the informant he was falsely implicated in an event that took place elsewhere. Then, we have the place of occurrence. A person is shot in the head and the witnesses admit that he was profusely bleeding and there was trail of blood on the ground but when the Investigating Officer Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 10 - visits the place within a few hours he does not find a single drop of blood in the vicinity nor does the Investigating Officer find any sign of scuffle or broken maize crop anywhere nearby to justify the theory that the appellant had managed to run in the maize field and disappeared. Then, we have something more interesting as shown above. One bullet was fired at close range killing Md. Hassnain Khan. It was recovered from his skull on postmortem. Admittedly, no one had seen who had fired the shot. It is then alleged that the appellant fired at the informant injuring him the bullet of which was recovered and seized though not produced in the Court. If we refer to the injury report of the informant, we would find that the injury is a simple injury suggestive of the bullet scrapping through causing scratch mark but the doctor‟s report mentions that it is lacerated wound with blackening and tattooing measuring 1½” x ½” with skin deep 1/2” above left nipple. The doctor, P.W.13 in his cross-examination, based upon the two injury reports prepared by him, states that the injury must be caused by firing from about distance of 20 to 25 yards. In his cross-examination, he further states that blackening and tattooing may be caused by fire arm, if it is fired from a distance of 25 yards. With due respect to the doctor, he has got his forensic science absolutely wrong. Here, we may notice that the informant himself admits in his examination-in-chief that the shot that the appellant allegedly fired at him was from about 10 to 15 feet away. Why we hold that the doctor, P.W.13 is wrong and why we are holding that the informant is making a wrong statement is that blackening and charring of injuries caused by fire arm happens only if the firing is done within distance of less than 5 feet. We may just quote from HWV Cox Medical Jurisprudence and Toxicology, Seventh Edition, Lexis Nexis Butterworths Publication wherein the results of experiments undertaken with regard to gun shot Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 11 - are noted at page-482 thereof and relevant part is quoted hereunder:- (i) Scorching was found up to a distance of one foot with the standard shotgun and upto six inches with the country made pistol. (ii) Tattooing was obtained upto a distance of three feet with the standard gun and one foot with the country made pistol. (iii) Blackening was obtained up to a distance of three feet with the standard gun and one foot with the country made pistol. Our attention was also drawn to the judgment of the Apex Court in the case of Santa Singh Versus State of Punjab since reported in AIR 1956 SC 526 wherein in paragraph-5 this is what their Lordships have held:- (5)………For instance, it is stated in Taylor‟s Principles and Practice of Medical Jurisprudence, Vol. I, 10th Edition, at page 441, under the heading “Burning of the Wound”: “It is impossible to state rules as to the precise distance from which it is possible to produce marks of burning, for this depends on the quantity & nature of the powder, the method of charging, and the nature of the weapon. It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shot gun, or at more than half a yard with a revolver”. Thus, on the admitted evidence of the prosecution, it is clear that the story as set up is not what it is. Some incident took place somewhere else and for some reason the appellant is dragged in it. The Patna High Court CR. APP (DB) No.414 of 1989 dt.02-12-2011 - 12 - prosecution case is full of unanswered and uncorroborated questions. It has failed to prove both the place of occurrence and the manner of occurrence. Before parting, we may notice one aspect so far as the offence under Section-302 I.P.C. is concerned, not a single witness has deposed having seen the appellant firing on the deceased at a close range. It is only the informant, who, contrary to his statement in the fardbeyan tried to build a story that he woke up on hearing the sound probably of firearm being loaded which cannot be believed as his categorical statement had been that he woke up on hearing the first shot. Apart from this, there is not a whisper against the appellant with regard to the first shot. There is no evidence that the first shot and the second shot both were fired by the same person with the same weapon. Indeed what was the weapon has never been fixed. What is most curious is that the appellant has not even been charged for the offence under the Arms Act. We wonder why even no chargesheet was filed for an offence under the Arms Act. Then the medical evidence is totally inconsistent with the ocular evidence of the informant and other witnesses. In such a situation, in our view, the benefit of doubt has to go to the accused. We, thus, allow this appeal and set aside the judgment and order of conviction under appeal and relieved the appellant of the liabilities of bail bonds. (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.) Patna High Court Dated 2nd December, 2011 Trivedi/AFR