CRIMINAL APPEAL No.318 OF 1993 Against the Judgement and Order dated 25th September, 1993 passed by Sri Anwar Ahmad, 3rd Additional Sessions Judge, Nawadah in Sessions Trial No.83 of 1988/16 of 1991. ---- WAKIL SINGH, SON OF LATE KAILASH SINGH, RESIDENT OF VILLAGE MAFI,P.S.WARSALIGANJ,DISTRICT-NAWADAH. ...............................................Appellant. Versus The State of Bihar............................Respondent. ........ For the Appellant :Sri Arun Kumar Tripathi, Amicus Curiae. For the State :Sri Dasrath Mehta, A.P.P. ........ P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The solitary appellant Wakil Singh was put on trial for committing an offence under Section 304 IPC by the learned 3rd Additional Sessions Judge, Nawadah and by the judgement dated 25th September, 1993 the appellant was found guilty of committing the above noted offence. The appellant was directed to suffer rigorous imprisonment for seven years by the order of sentence passed on the same day. The appellant has assailed the above judgment of guilt recorded against him by the learned 3rd Additional Sessions Judge as also the order of sentence in the present appeal. 2. P.W.7 Vidyanand Singh, who is the son of the deceased Babulal Singh, gave him 2 fardbayan before the police in Warsaliganj hospital that while he, his elder brother and father were returning back home after having made some purchases in Warsaliganj-market along with Bindeshwari Singh(P.W.4), Uday Shankar Singh(P.W.5) as also Ramratan Singh(P.W.3) the informant found the appellant hurling abuses on passersby and during that course he picked up a piece of brick and hurled it upon the deceased who was leading the band of persons which hit him on the left temple. Babulal Singh fell unconscious. He was put on a cot and was shifted to the above noted hospital from where he was referred to Nawada and the man died in the way. 3. On the basis of Ext-4 the fardbayan of P.W.7, the F.I.R. of the case, i.e., Ext.1 was drawn up and investigation was taken up by an officer of Warsaliganj police station on completion whereof the solitary appellant was sent up for trial and that ended in his conviction and sentence as indicated above. 4. The defence of the appellant was of innocence and falsely implication by the witnesses who had not seen the occurrence. The further defence was that the deceased Babulal Singh was a veteran criminal who had been assaulted and killed by some one else at some place other than that alleged by the prosecution and for any reason the appellant was 3 implicated falsely. 5. Sri Arun Kumar Tripathi, as Amicus Curiae, has submitted, by referring to the evidence of the eye witnesses as also to that of P.W.2 Dr. Deo Brat that the witnesses had not seen the occurrence and they were stating facts indicating assault by the appellant out of their imagination. It was contended that only interested persons were examined and other persons who were attracted to the scene of occurrence were not examined. The third contention was that the evidence of P.W.2, Dr. Deo Brat, indicates that the witnesses were telling lies on the most important aspect of the case, i.e., the manner of assault and as such their evidence could not be accepted. It was lastly contended that the prosecution appears not succeeding in proving the charge against the appellant to the hilt. 6. Sri Dasrath Mehta, learned A.P.P. appearing for the State, submitted that the medical evidence is merely an opinion evidence which could not be used for discarding the evidence of eye witnesses and if the court considers the evidence of P.Ws.3, 4, 5 and 7 it could be found that there is a consistency and ring of truth around the evidence and as such they appear truthful witnesses. 7. Before I proceed to examine the 4 arguments of the parties in the light of the evidence available on record, it appears pertinent to point out that the value of the evidence of Doctor may not be by way of being an opinion evidence, the defence could utilize it to show to the court that the witnesses who deposed on the facts of the case might be telling lies and on that account the defence could persuade the court to take a view that the witnesses may not be eye witnesses. The other aspect of relevance and utility of the medical evidence is that the defence could point out to a court that the manner of occurrence which has been alleged by the prosecution not being corroborated by the evidence of the doctor, the prosecution case suffers from a very fundamental defect and, as such, the accused persons could not be convicted. 8. Coming to the evidence of Dr. Deo Brat I find that he found three ante mortem injuries while holding the postmortem examination on the dead body of Babulal Singh which were as under:- (1)An lacerated wound 1 ½”x1/4”x1/4” over the face, below the left eye. (2)An abrasion 1”x1/2” over forehead 1 ½” above the right eye brow. (3)Bruise & ecchymosis over scalp P.W.2 on dissection of the wounds 5 found the fracture of scalp wounds and blood under the scalp. There was haemorrhage under the scalp. Other internal organs were found intact but pale. In cross-examination part of the evidence of P.W.2 what is found is that the Doctor was categorical in telling that all the injuries were caused by three separate assaults and that there was fracture of scalp bone but what bone were found fractured was never stated by him. 9. On perusal of the evidence of P.W.2 what is found is that the doctor did not specify as to on account of which of the three assaults the deceased could be dying. This much is clear that the assault which was given on scalp had caused multiple fracture of skull bone and had further caused haemorrhage within the skull. Thus injury no.3 could be the real cause of death. Another aspect which appears to me after going through the evidence of P.W.2 is that on careful reading and consideration of it what may appear from injuries no.1 and 2 is that they might be produced by the impact of some big substance, may be a brick. But that does not appear to be the cause of death. The doctor’s evidence could be there that there might be three separate assault causing the three injuries. If that could be so then the argument of the learned Amicus Curiae that the witnesses 6 had not really seen the occurrence and that they were speaking before the trial court out of their imagination after imaging a particular situation could be very difficult to be ruled out. 10. The evidence of P.Ws.3, 4, 5 and 7 is relevant to be considered at this particular stage. P.W.3 is the full brother of the informant P.W.7 and as such he is the son of deceased. On reading of the evidence of P.W.5 Uday Shankar Singh in paragraph 2 and 3 it could raise a probability in the mind of any reasonable person that the witness along with the deceased Babulal Singh had been accused in a case of dacoity. P.W.4 Bindeshwari Singh has stated in paragraph 11 of his cross-examination that he had never made a statement before the police that appellant Wakil Singh had dealt a blow with brick on the left temporal region of the deceased. This admission of P.W.4 makes his entire evidence inadmissible in respect of the incident which was never stated by the witness before any authority other than the court for the first time during the course of trial. So far as the status of P.W.7 Vidyanand Singh, the informant, is concerned besides being the son of the deceased he was also an accused in the same dacoity case in which his father was an accused. These facts if considered together could raise a 7 probability that the witnesses could have some interest or the other to come forward to speak out facts as per desire of the prosecution. 11. It is well-known that mere consistency or any incongruity in the evidence is the never the hallmark of truthfulness, a witness could be judged from his own statements and the circumstances which surround him. The consistency could be indicative of one fact that the witnesses were tutored to till one consistent fact which could bring home the charge against an accused. All witnesses have stated that the deceased who was moving ahead of them, received a blow by brick which was given by the present appellant. The appellant did not have any reason or any motive to assault the deceased. He did not have any score to settle with the deceased. The appellant was not an insane persons as may appear from cross- examination of different witnesses on the above fact. Then the simple question which could crop up is as to why the appellant could be killing an innocent man who did not have any grudge or animosity with him. 12. The argument is that the manner of occurrence gets falsified by the evidence of doctor could also not be easily repelled. The witnesses were consistent that there was a solitary blow with brick on the left temporal 8 part of the head of the deceased. The doctor did not find even a scratch on the left temporal area of the deceased rather he found two abrasions below and above the left eye one abrasion on the skull. This serious conflict between the medical evidence and the testimony of witnesses is so glaring and fundamental as to requiring recording a finding by me that the witnesses were really speaking out of their imagination and as such the possibility could be very much be there of false implication . I find it very difficult to reject the above circumstances so as to sustaining the conviction recorded by the learned trial Judge against the appellant. In my considered view the prosecution did not succeed in bringing home the charge to the hilt. 13. In the result, the appeal is allowed. The judgement of conviction and order of sentence are hereby set aside. The appellant is acquitted. He is on bail. He shall stand discharged from the liabilities of his bond. Patna High Court Dated the 26th February, 2009 NAFR/B.Kr. ( Dharnidhar Jha, J. )