Patna High Court CR. APP (DB) No.80 of 1989 dt.11-08-2011 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No 80 of 1989 Against the judgment and order dated 31.01.1989 passed by Sri K M Toppo, Additional Sessions Judge, Nawada in Sessions Trial No 37 of 1988/343 of 1983 brearing G R Case No 905 of 1982. --------------------------------- Kauleshwar Singh, son of Jagdish Singh, resident of village – Narauli, P S – Sirdala, District - Nawada .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s ======================================================== Appearance : For the Appellant/s : Mr Anjani Kumar Jha, Advocate For the Respondent/s : Mr Shiwesh Chandra Mishra, APP ======================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH & HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) 1 The present appeal has been filed by the sole appellant against the conviction under Section 302 of Indian Penal Code and the sentence of life imprisonment as awarded to the appellant by the Additional Sessions Judge I, Nawada in Sessions Trial No 37 of 1988/343 of 1983 (G R 905 of 1982) dated 31.01.1989. 2 The prosecution case, as evident from the fardbayan (Exhibit- 3), is from the mouth of the informant Bhuneshwar Singh, who is the brother of the deceased, that the appellant and the deceased had a verbal altercation at 5 am on 03.07.1982 in regard to their buffalos fighting. The deceased is said to have hit the buffalo of the appellant which enraged him. He went to his house which is next door and came out with a Garasa. By then, the deceased had milked his buffalo and gone into the Angan/courtyard to keep the milk when Patna High Court CR. APP (DB) No.80 of 1989 dt.11-08-2011 2 the appellant alongwith his younger brother came and the appellant is said to have struck the deceased on the head with the Garasa and his younger brother gave two or three lathi blows on the heap of the deceased who fell down unconscious. It is in this state of unconsciousness that he is taken to the State Dispensary where the fardbayan is recorded at 9.30 am. The fardbayan being so recorded, the formal first information report is registered at 2.30 pm on 03.07.1982 itself. The police thereupon takes up investigation as against the appellant and his younger brother and, upon completion of investigation, files chargesheet only as against the appellant not sending his younger brother for trial. Pursuant to cognizance having been taken, the case has been taken to the Court of Session and charges have been framed against the appellant under Section 302 of Indian Penal Code to which he pleaded not guilty and, accordingly, trial commenced. 3 In course of trial, eleven witnesses were examined on behalf of prosecution. At this stage, it may be mentioned that in the first information report so registered, it is mentioned that at the place and time of occurrence, Satyabhama Devi, the wife of deceased was present who is P W 1, Karu Singh (P W 4) and Yamuna Singh (P W 6) were also present so allegedly the informant who is Bhuneshwar Singh (P W 7). Out of the above, only Karu Singh is an independent eye witness. The rest that is Satyabhama Devi is the wife, Bhuneshwar Singh is the brother of the deceased and Yamuna Singh is a Gotia. In course of trial, two other persons are examined as eye witness that is P W 2 Devendra Kumar, the son of the deceased and P W 3 Sanju Devi who happens to be daughter of the deceased. Thus, out of the eleven witnesses examined, six are said to be eye witnesses and only one of them Karu Singh (P W 4) is independent witness. The Investigating Officer has been examined as P W 8 but having given the statement in course of examination-in-chief, his Patna High Court CR. APP (DB) No.80 of 1989 dt.11-08-2011 3 cross-examination was adjourned but he died in the meantime. It may be noted that the defence has not sought rejection of the said deposition but relies on the examination-in-chief of the Investigating Officer though without cross- examination. P W 5 is the Civil Assistant Surgeon who proves the injury report (Exhibit-1) which is very material in the present case. P W 9 Md Islam is Advocate Clerk (Tayeed) who has proved, inter alia, the post mortem report because the doctor, who conducted the post mortem examination, also died and the inquest report was prepared by the Investigating Officer who also died. He also proves case diary from paragraphs-1 to 74 thereof which has been marked as Exhibit-6. P Ws 10 and 11 are witnesses to the inquest report which was prepared at the Patna Medical College and Hospital where the deceased died in course of treatment on 09.07.1982 and also proved death of the Investigating Officer. As noticed above, P Ws 10 and 11 are inquest report witnesses which inquest report has been marked as Exhibit-8 and has been prepared at Patna Medical College and Hospital on 09.07.1982. 4 So far as the depositions of the six eye witnesses are concerned with regard to the place of occurrence, the manner of occurrence, they are fully consistent. All of them claim to have seen the occurrence which took place at 5 am on 03.07.1982. Learned counsel appearing for the appellant pointed out that all these eye witnesses have admitted that there was profused bleeding because of the injury. P Ws 1 and 3 being wife and the daughter respectively have said that they held the body of the deceased who was then unconscious as a consequence their clothes and their body became stained with blood. P W 3, the daughter, in her deposition, states that she had given her blood-stained clothes to the police. Pointing to these statements by the prosecution witnesses, learned counsel for the appellant draws attention of the Court to the deposition of the Investigating Officer that is P W 8 who clearly admits that Patna High Court CR. APP (DB) No.80 of 1989 dt.11-08-2011 4 when he went in course of investigation to the place of occurrence, he found no sign of blood. The entire case diary has been exhibited. Out attention has been drawn to it to show that no blood-stained clothes were seized nor were any such thing produced in Court. 5 Now, we must consider some material evidence. As noted above, the occurrence was of 5 am. The fardbayan is recorded at 9.30 am. The first information report is registered at 2.30 pm. In between, the deceased is attended to by the doctor (P W 5) in the State Dispensary. The injury report prepared by the doctor is prepared at 8.30 am that is one hour even before the fardbayan is recorded. Learned counsel for the appellant draws attention of this Court to the deposition of the doctor (P W 5) and the injury report (Exhibit-1). Doctor admits that the injury is about 6”x1/2”xbrain deep and admits that the injury report was prepared at 8.30 am, as noted therein. In his examination-in-chief, he admits that the patient was referred for preparing injury report by the police. In his cross-examination, he admits that seeing to the nature of injury, it ought to have been a profusely bleeding injury and being a fresh injury, he could not explain why the time of injury was noted as within 36 hours instead of fresh injury within 4 hours. Thus, submits the learned counsel for the appellant that the incident took place at 5 am. The patient was taken to the Police Station from where he was referred for medical treatment and report which was prepared at 8.30 am but the fardbayan is being recorded at 9.30 am which remains unexplained. It is suggested and rightly so that police could not have referred the patient involved in a cognizable offence without recording some statement either as a sanha entry or as a fardbayan. Further, it is pointed out that if, as said by the doctor, the patient was forwarded by the police why was the forwarding not exhibited. Further, it is pointed out that though the formal first information report was recorded on Patna High Court CR. APP (DB) No.80 of 1989 dt.11-08-2011 5 03.07.1982 at 2.30 pm, which was a Saturday, it is said to have been forwarded to Court on 04.07.1982 Sunday which was received in the Court only on 06.07.1982 that is Tuesday. There is no explanation for this inordinate delay. 6 The consistent plea of the defence, as appearing from the suggestion given to the so-called eye witnesses, is that in fact the injuries were sustained by the deceased much earlier somewhere else, information of which has also been given to the police which was suppressed and subsequently, only to falsely implicate the appellant, this fardbayan was lodged and registered as the first information report. It is further pointed out that in the first information report, there is mention of one Karu Singh who is the only eye witness in the present case apart from official witnesses or formal witnesses but the prosecution merely tendered him. We have heard the learned counsel for the appellant and examined the records. We find that the facts, as pointed out by the learned counsel for the appellant, are fully borne out from the records. At this stage, we must notice one important aspect of the matter. We examined Exhibit-1, the injury report. In fact the injury report, which has been exhibited, is on the backside of the requisition as made by the police for examining the injured. As noted above, the doctor has deposed that the injured had been referred to him by the police but the prosecution has withheld this requisition. The reason was obvious because on the requisition itself, it is stated that the injured is being sent for examination with bandaged injury. When we see the injury report (Exhibit-1), it mentions that the injured is with two persons accompanying him, namely, Narendra Singh and Bhuneshwar Singh who are P Ws 10 and 7 respectively. These facts, in our view, disclose that what is stated by the prosecution is not correct. The submission of the learned counsel for the appellant appears to be correct when he submits that the alleged occurrence having taken place at 5 am and upon reference by the police, the doctor Patna High Court CR. APP (DB) No.80 of 1989 dt.11-08-2011 6 examined the injured at 8.30 am and there being the brother and nephew of the deceased, it could not have been so done unless police had already recorded a fardbayan, if not registered a case. Thus, there was a fardbayan recorded earlier which has now been replaced subsequently by another at 9.30 am one hour after the injury report is prepared. Further, the requisition, as noted above, clearly states that the injured had bandaged wound on the head. If this fact is taken note of with the deposition of the doctor (P W 5) who says that the injury is within 36 hours and then clarifies that it should have been 4 hours, it appears that the injury caused was also not a fresh injury but had been there from before. We may now refer to the post mortem report (Exhibit-7) which records injury which has had surgical interference. It is stitched wound. No papers of forwarding to PMCH or treatment rendered at PMCH are at all produced. As noted above, no clothes showing blood-stained are produced nor at the place of occurrence, does the Investigating Officer find blood-stained. 7 These facts, taken together, clearly show that the story, set up by the prosecution with regard to the manner of occurrence, the place of occurrence and date of occurrence are all unreliable. We may also mention here that in the first information report and consistently in the evidence also, the prosecution case is that the younger brother of the appellant assaulted the deceased with lathi. Apart from the fact that in deposition, the place where lathi was struck varies from back to leg, the injury report makes no mention of any such injury. What is more is upon investigation, the younger brother of the appellant is not sent up for trial. Even though his name comes in course of trial as an assailant, prosecution makes no attempt to summon him under Section 319 of Criminal Procedure Code. The reason is obvious. As noted earlier, the only independent eye witnesses is Karu Singh (PW 4). He is tendered by the prosecution. In his cross-examination, he admits that the younger brother of Patna High Court CR. APP (DB) No.80 of 1989 dt.11-08-2011 7 the appellant is only about 12 years old. That establishes that it was only an attempt to falsely implicate the appellant and his brother in an occurrence which is neither proved nor established much less beyond reasonable doubt. 8 The result is this appeal is allowed. The appellant is acquitted of the charges and discharged of his bail bonds. (Navaniti Prasad Singh) Ashwani Kumar Singh, J I agree. (Ashwani Kumar Singh) Patna High Court, The 11th of August, 2011, N A F R, M E Haque/