IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.150 of 1989 --------- Against the judgment of conviction and order of sentence dated 14.2.1989 passed by the 4th Additional District and Sessions Judge, Patna, in Sessions Trial No.358 of 1981, Tr. No.38 of 1982. Sarjug Yadav, son of Late Kunwar Yadav, resident of village-Chitrauli, Police Station-Dhanarua, District-Patna. ……………………………………………………………………………….Appellant. Versus The State of Bihar………………………………………………………..Respondent. Appearance : For the Appellant : Mr. Ashwini Kumar Sinha, Advocate. For the State : Mrs. Sashi Bala Verma, A.P.P. CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA -------- ORAL JUDGMENT ------- S.K. Sharma & R.K. Mishra, JJ. The sole appellant, Sarjug Yadav, has preferred this appeal against the judgment of conviction and order of sentence dated 14.2.1989 passed by the Additional District and Sessions Judge-IV, Patna, in Sessions Trial No.358 of 1981, Tr.No.38 of 1982, whereby the appellant was found guilty under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life. The other three accused persons, namely, Arjun Yadav, Hira Yadav and Raj Kishore, who were charged under Sections 302/34 of 2 the Indian Penal Code, were found not guilty and they were acquitted of the charges. 2. The prosecution case, as per the fardbeyan (Ext.1) of Bedu Prasad Yadav, P.W.1, the uncle of the deceased, Haricharan Yadav, given on 1.4.1980 at 9.55 A.M. at the Patna Medical College and Hospital (P.M.C.H.) after the death of the deceased, Haricharan Yadav, is that on 31.3.1980 the she-goat of accused Arjun Yadav was found grazing gram and khesari in the khaliyan of his nephew, Haricharan Yadav (deceased). Thereafter, he alongwith his brother, Sukhari Yadav, P.W.2 and the deceased, Haricharan Yadav, were taking the said she-goat to the pond and while they were taking the she-goat to the pond, all the four accused persons variously armed came there and the appellant, Sarjug Yadav, assaulted the deceased Haricharan Yadav with Garasa on his head and leg, as a result of which he fell down. Thereafter he was removed to the Dhanarua Hospital for treatment and from there to Patna Medical College and Hospital where he died. The further case of the prosecution is that on the alarm being raised by them, two persons, namely, Ram Pravesh Yadav (Sarpanch) and Deo Narayan Singh (both not examined) came and all the accused persons retreated. In the records, there is another fardbeyan of the deceased, Haricharan Yadav, which was given by him at 18.15 hours on 31.3.1980 at Dhanarua Hospital. On the basis of his fardbeyan, a case under Sections 307 and 324 of the Indian Penal Code was instituted by the Dhanarua Police Station vide Dhanarua P.S. Case No.21 dated 31.3.1980 and the investigation was started by Dhanarua Police Station. In course of investigation of the 3 aforesaid case, fardbeyan of Bedu Prasad Yadav ,P.W.1, recorded on 1st of April, 1980 at Patna Medical College and Hospital, after the death of the deceased, was received at Dhanarua Police Station. The Dhanarua Police after completion of the investigation submitted charge sheet in the aforesaid case against all the four accused persons and final form was submitted against one Shyamdeo. 3. After submission of charge sheet cognizance of the offence was taken and the case was committed to the court of sessions for trial. 4. The defence of the appellant was of false implication and also that the prosecution has not given the real version and first ferdbeyan of the deceased was not brought on record. The prosecution case has been tampered with at all stages. 5. The prosecution in order to prove its case has examined altogether nine witnesses. They are P.W.1, Bedu Prasad Yadav, the informant, the uncle of the deceased, P.W.2, Sukhari Yadav, the father of the deceased, P.W.3, Krishna Yadav, the cousin brother of the deceased, P.W.4, Judagi Yadav, the brother of the deceased, P.W.5, Savita Kumari, the daughter of the deceased, P.W.6, the wife of the deceased, P.W.7, Chandeshwar Yadav, the brother-in-law of the father of the deceased. P.Ws.1 to 7 have been examined as eye witnesses. P.W.9 is Dr. Basant Singh, who had treated the injured-deceased, Haricharan Yadav, at Dhanarua Hospital and found one incised injury over the left parietal region 3” X 1/2" X bone deep (grievous in nature). Another injury was one incised cut wound at right ankle 2 ½” X 1/2” X superficial layer of 4 bone (simple in nature). The injuries were found caused by sharp weapon. P.W.8 is Dr. Upendra Prasad Verma, who had conducted post-mortem examination of the deceased Haricharan Yadav on 1.4.1980 at 11.30 A.M. in the Patna Medical College and Hospital Mortuary. He found the following ante mortem injuries on the person of the deceased: (i). Abrasion 1 ½” X 1/4" at dorsum of right wrist. (ii). A stitched wound 3” in length X bone deep at left parietal region. Blood clot 5” X 3” underneath in the scalp. (iii).Depressed fracture 1/2” X 1” with lineal extension. (iv).Extra-dural blood clots 6” X 3” X 1” at left parietal temporal region and also including left mid cranial fossa. (v). On the medial aspect of right ankle there was stitched 1” in length X 1/10” in deep meant for transfusion (Surgical) The post-mortem report (Ext.2/1) goes to show that the deceased, Haricharan Yadav, died due to the injury received by him on his head. 6. P.W.1, Bedu Prasad Yadav, is the informant of this case, who has given his fardbeyan at Patna Medical College and Hospital on 1.4.1980 at 9.55 A.M. He has fully supported the case of the prosecution. In his evidence, he has stated that the she-goat was being taken to the pond by the deceased, Haricharan Yadav and his father, Sukhari Yadav, P.W.2 and he himself was near Devi Asthan and when they reached near Devi Asthan, all the accused persons came. The accused-appellant, Sarjug Yadav, was armed with Garasa and other accused persons were armed with lathi. The accused- 5 appellant, Sarjug Yadav, assaulted the deceased, Haricharan Yadav, with Garasa on his head and leg as a result of which he fell down. Thereafter, the remaining accused persons assaulted the deceased, Haricharan Yadav, with lathi. On arlam being raised by him, Judagi Yadav, P.W.4, Krishna Yadav, P.W.3 and other persons came. Thereafter, accused persons retreated. The deceased, Haricharan Yadav, was brought to the Police Station and from where he was sent to the Patna Hospital where he died. Thereafter, his fardbeyan was recorded. 7. Learned counsel appearing for the appellant submitted that there is contradiction in the evidence of P.W.1, Bedu Prasad Yadav and his fardbeyan as P.W.1, Bedu Prasad Yadav, in his farebeyan has stated that after taking she-goat, he alongwith the deceased, Haricharan Yadav and Sukhari Yadav, P.W.2, were going to the pond but in his evidence, he has stated that he was near the Devi Asthan and the deceased, Haricharan Yadav and Sukhari Yadav, P.W.2, were coming taking the she-goat. In that view of the matter, the evidence of this witness is not believable. It has also been submitted that it is wrong to say that the contradictions are not so vital as to belie the prosecution case and onus was upon the prosecution to prove its case beyond unreasonable doubts but the prosecution has tried to fill up the lacuna in course of the examination of the witnesses. The evidence of P.W.1, Bedu Prasad Yadav, during his examination in chief was sufficient to believe that he has not given correct version of the occurrence. 8. Other witnesses have supported the case of the 6 prosecution but there are some major contradictions. On the record, there are two versions of fardbeyan and the records show that Dhanarua P.S. Case No.21 dated 31.3.1980 was registered by A.S.I., J.K. Singh on the basis of the fardbeyan of the deceased, Haricharan Singh and there is another fardbeyan on the record which was given by Bedu Prasad Yadav, P.W.1 and there is no explanation as to how the fardbeyan of the deceased, Haricharan Yadav, was not brought on record. 9. Learned counsel for the appellant submitted that the prosecution has tried to conceal the real version of the occurrence and they by suppressing the real versions have falsely implicated the accused persons because the F.I.R. of the case was registered on 31.3.1980 at 7.00 P.M. and the formal F.I.R. was sent to the court on 5th of April, 1980. 10. The Code of Criminal Procedure mandates that the First Information Report must be sent to the court without delay. This Section of sending the F.I.R. without delay has been brought on record only with a view to see that the courts receive the earliest version of the occurrence. This is general precaution that when the matter is suppressed for longer time then all the apprehensions rise. Chapter-XII of the Code of Civil Procedure deals with the information sent to the police and their powers to investigate the case. Section 157 of the Code of Criminal Procedure mandates that if the information of occurrence is received then the police has to send a report “forthwith” to the Magistrate empowering him to take cognizance. Section 157 of the Code of Civil Procedure casts such 7 duty upon the Investigating Officer to forthwith send the report of the cognizable offence to the nearest Magistrate which is empowered to take cognizance. The purpose of this Section is that the Magistrate taking cognizance be made aware of an occurrence without delay. If the delay is too much then it casts grave suspicion regarding the authenticity of the prosecution case. The delay in sending the F.I.R. to the court is not vital and the delay of several days can be condoned but for that the prosecution has to establish that there were no latches on its behalf and it has occurred due to some unavoidable reasons. This Court could have got assistance of opinion if the Investigating Officer could have been examined. But in the present case, the Investigating Officer of the case has not been examined. The delay coupled with existence of two versions of the fardbeyan on the record creates serious doubt regarding the prosecution version of the case. Therefore, though the prosecution has been able to prove that Haricharan Yadav died of the injuries received by him by sharp cutting weapon but it has not been able to establish that the death of the deceased was caused by this appellant. The existence of two versions of the fardbeyan as well as the delayed receipt of the fardbeyan in the court after 4-5 days, between the registration of the F.I.R. and its receipt by the Court, goes to show that the prosecution has not come with clean hands and given a different version. This creates a doubt regarding the truthfulness of the prosecution case. Once the doubt is created, the benefit of doubt should be given to the appellant. 11. In the result, the judgment of conviction and order of 8 sentence against the appellant is set aside and the appeal is allowed. The appellant is acquitted of the charge and he is discharged from the liabilities of his bail bonds. ( Shyam Kishore Sharma, J) (Rajendra Kumar Mishra, J) Patna High Court, Patna. Dated: The 11th of July, 2011. Pradeep Srivastava/N.A.F.R.