CRIMINAL APPEAL No.99 OF 1993(SJ) with CRIMINAL APPEAL No. 121 OF 1993 (SJ) Against the judgment of conviction and order of sentence dated 8th April, 1993 passed in Sessions Trial No. 401 of 1988 passed by Sri Birendra Kumar Sinha, 2nd Additional Sessions Judge, Muzaffarpur. ******* 1. RAM KUMAR SINGH S/O RAMCHANDRA SINGH R/O VILLAGE- CHANDRAHIA, P.S.- KURHANI, DISTRICT- MUZAFFARPUR ……………………………………..APPELLANT (Cr. Appl. No. 99/1993) 2. BHUNESHWAR SINGH @ MUNESHWAR SINGH S/O KALI SINGH 3. RAM BALAK SINGH S/O BHUNESHWAR SINGH 4. RUDAL SINGH S/O JAICHAND SINGH ALL RESIDENT OF VILALGE- CHANDRAHIYA, P.S.- KURHANI, DISTRICT- MUZAFFARPUR …………….…….. APPELALNTS (Cr. Appeal No. 121/93) VERSUS STATE OF BIHAR ………………………. RESPONDENT ********** For the Appellants :- Mr. Chandra Bhushan Das, Advocate For the State :- Mr. Ali Mozaffar, APP **************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S. K. Sharma, J. Above named appellants have preferred these appeals against the judgment of conviction and order of sentence dated 8th April, 1993 passed by the learned 2nd Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 401 of 1988 whereby the appellant Ram Kumar Singh has been sentenced to undergo rigorous imprisonment for five years under section 307 of the Indian Penal Code and 2 other appellants, namely Bhuneshwar Singh @ Muneshwar Singh, Ram Balak Singh and Rudal Singh were found guilty for the offence under section 323 of the Indian Penal Code and considering the nature of the offence they were granted benefit of Probation of Offenders Act because no previous conviction was proved and so they were released on Probation bond of Rs. 2,000/- with two sureties each for the period of one year. Prosecution case is with regard to the occurrence dated 3.1.1987 at 11.00 AM. At that time the informant Naresh Rai was sitting in the clinic of Dr. Ansari (not examined) in village Chandrahiya on bench. Appellant Ram Kumar Singh was also sitting on that bench. Ram Kumar suddenly fell down upon which the informant laughed. Ram Kumar became aggrieved on account of laughing and started abusing the informant. Other three appellants also started abusing the informant and at the dictate of appellant no. 1 the other three appellants slapped the informant. Appellant Ram Kumar Singh brought Garansa and attacked the informant on his head. The case was registered on the fard beyan of Naresh Rai under sections 323 and 324 of the Indian Penal Code but after investigation charge sheet was submitted under section 307 of the Indian Penal Code also. The case was committed to the court of Sessions where the charge under section 307 of the Indian Penal Code was 3 framed against Ram Kumar Singh and against others charge was framed under sections 307/149 of the Indian Penal Code. Further all the appellants were charged under section 323 of the Indian Penal Code also. The defence of the appellants was of false implication due to enmity. It was also suggested that there was no occurrence at all because the allegation and charge of causing injury has not been proved due to contradictory version of the doctor and the prosecution. In order to prove the case the prosecution has examined all together five witnesses. They are Batahu Ram ( PW 1), Lalbabu Sah (PW 2), Ram Naresh @ Ram Naresh Rai (PW 3), Dr. Madhurendra Kishroe (PW 4) and Sakil Ahmad ( PW 5) who is a formal witness and has proved bed head ticket (Ext. 3, 3/1 and 3/2). PW 4 has come to say that he has examined the injured on 3.1.1987 at 5.45 P.M. and found one incised wound 6”x3” bone deep on the back of the head extending up to the right cheek. It was cavity deep as mentioned by the attending surgeon in the bed head ticket. According to the opinion of the doctor, the injury was grievous in nature and it was caused within 12 hours by sharp cutting weapon. The injury report was marked as Ext-2. The informant has been examined as PW 3. He has stated that on the date and time of occurrence he was 4 sitting in the clinic of Dr. Ansari on a bench and sometime thereafter, appellant Ram Kumar Singh also came and sat over that very bench. The informant stood up but on account of that appellant Ram Kumar Singh fell down. The informant laughed at, thereafter, the appellant Ram Kumar Singh started abusing and others followed Ram Kumar Singh. After abuse by all of them appellant Ram Kumar Singh took out a Garansa from somewhere and assaulted upon the informant’s neck which extended up to cheek. Doctor Ansari intervened and saved the informant. The informant, thereafter, fell down in the field of Brahmdeo Rai which was situated adjacent to the clinic of Dr. Ansari. He was taken away for treatment. PWs 1, 2 and 3 also to some extent supported the allegation of assault. All of them have identified the appellants when they were asked to identify. It has been pointed out by the learned counsel appearing on behalf of the appellant that the allegations becomes doubtful in view of the contradictory evidences of PW1 with regard to time of occurrence. The prosecution case is that the assault was at 11 A.M. and this version has been stated by the informant, PW2 and PW 3 but PW 1 who has been examined as eye witness to the occurrence has stated that it was at 11 in the night. The informant is not consistent in his evidence regarding assault. The clinic of Dr. Ansari is the place of 5 occurrence. Dr. Ansari, who is also a doctor, saved the informant after assault. There is nothing on the record from which any inference could be drawn that Dr. Ansari was not available for his evidence. It was the duty of the prosecution to bring him for deposition. This was the vital lacuna so a doubt stands created with regard to the place of occurrence. The Investigating Officer has not been examined and it has been submitted that non-examination of the I. O. has caused great prejudice because the prosecution story was that the blood was found at the place of occurrence but that blood was neither chemically examined nor the I. O. has come to say that he has seized any blood. With regard to time of occurrence also it has been argued that due to non- examination of the I. O. the defence has not been able to take out the benefit of contradictions in the evidences of the witnesses. With regard to manner of occurrence it has been submitted that it has come that after assault the informant PW 3 fell down in the adjacent land and for that purpose the examination of the I. O. was a must. Here also non- examination of the I. O. has caused great prejudice to the appellants. According to the informant, after occurrence he was taken to sadar hospital where he was treated but the doctor who has examined and treated the informant has stated that he was posted at S.K.M.C.H. Muzaffarpur on the 6 date of treatment of the PW 4 and he has treated him there. Learned counsel for the appellants submitted that it is not clear as to how the informant was admitted at Sadar Hospital and was treated by the doctor of the S.K.M.C.H., Muzaffarpur. According to the witnesses, initial treatment was given to the informant by Dr. Ansari but he has also not been examined. Learned counsel for the appellants has argued that in view of the so many contradictions neither place of occurrence, manner of occurrence nor motive has not been proved. It is further argued that some contradictions have remained un-explained. It appears that when the appeal was pending before this court then the appellant Ram Kumar Singh took plea that he was juvenile on the date and time of occurrence. On his plea an inquiry under section 32 of the Juvenile Justice Act was ordered. In the inquiry three witnesses AW 1 Mosmat Siya Devi the mother of Ram Kumar Singh, AW 2 Ramesh Mahto (maternal uncle of Ram Kumar Singh) and AW 3 Md. Parvej Alam were examined. AW 3 Parvej Alam has produced the original admission book of Government High School Turki, Muzaffarpur. Two public documents and one is the original Bihar School Examination Board certificate and original admit card of Bihar Intermediate Education Council were produced and 7 after examining Ram Kumar Singh the court below came to the opinion that Ram Kumar Singh was of 14 years six months and 18 days, so he was a juvenile. The trial of the juvenile was to be conducted under the provisions of the Juvenile Justice Act but the fact is that the appellant no. 1 Ram Kumar Singh was tried along with the others who were major and on this score the trial itself is vitiated. After considering the entire facts and circumstances of the case, I am of the view that non- examination of the I. O. has caused prejudice to the appellants because place of occurrence has not been proved. The place of occurrence differs, so it was necessary for the prosecution to bring the I. O. for clearance of the doubt with regard to the place of occurrence and another vital contradictions is with regard to time of occurrence. PW 1 has contradicted with the other witnesses and he has stated that it was the 11.00 PM of the night but the other witnesses have stated that it was 11.00 AM. It was also not proved by the informant that he was treated by the same doctor who has come here to depose. There is no explanation as to how a person admitted in Sadar Hospital was treated by a doctor posted at S.K.M.C.H. Non- production of blood, due to non-examination of the I. O., has also created doubt on the prosecution version. 8 In view of the vital contradictions in the prosecution evidences, I am of the view that the prosecution has failed to prove its charge against the appellants beyond all reasonable doubts. Once a doubt is created then the benefit goes to the accused persons. Accordingly, the impugned judgment of conviction and sentence is set side. In the result, these appeals are allowed and the appellants are discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J.) Patna High Court, Patna Dated, 6th August, 2009 N.A.F.R./avin