CRIMINAL APPEAL NO. 250 OF 1993 *** Against the judgment and order dated 17.08.1993 passed in Sessions Trial No. 358 of 1986 by the 3rd Additional Sessions Judge, Saran, Chapra. *** Jagdish Pandey ……… . . . . . . Appellant. Versus The State of Bihar ……… . . . . . . Respondent. For the Appellant : Mr. Kumar Uday Singh, Advocate For the State : Mr. Ali Mozaffar, A.P.P. *** P R E S E N T HON’BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM S.M.M.ALAM, J. This Criminal appeal has been preferred against the judgment and order dated 17.08.1993 passed by Shri Tarkeshwar Prasad Singh, 3rd Additional Sessions Judge, Saran, Chapra in Sessions Trial No. 358 of 1986 whereby he has convicted the present appellant Jagdish Pandey along with appellant no.1 Chandar Pandey @ Ramchandra Pandey, who is now dead under section 307 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for four years. The trial court has also convicted Radhika Devi who was appellant no.3 under section 323 of the I.P.C. and had released her under section 3 of the Probation of Offenders Act on admonition. The said appellant is also dead and thus at present there is only one appellant namely Jagdish Pandey. 2. The prosecution case as disclosed in the Fardbeyan of P.W.5 Banaras Pandey recorded by S.I. Z.A. Khan of Amnour P.S. on 02.10.1984 at 11.15 hours in brief is that there was a Neem tree by the side of the house of the informant and original appellant no.1 Chandar Pandey who was his own brother and who is now dead. On the same day at about 10.00 A.M. when the informant was sitting in front of his house at the Sahan this appellant along with his father Chandra Pandey came there and told the informant that due to 2 the falling of leaves from his Neem tree standing by the side of his house the drain was filled up and the water was not being drained out. The informant replied that how he could prevent leaves from falling in the drain. This reply caused annoyance to the appellant and he exhorted the other accused persons, whereupon Chandra Pandey who was appellant no.1 but now dead, assaulted the informant with Farsa causing injuries on his head and another accused namely Radhika Devi who was appellant no.3 assaulted the informant with wooden log and Jai Kumari Devi (not charge sheeted) assaulted him with axe. It is specifically said that the appellant Jagdish Pandey also assaulted the informant with axe. On hulla the witnesses namely Parichhan Thakur, Abdul Bari and others arrived there and intervened. After the occurrence the informant was taken to Amnour police station where his Fardbeyan was recorded and thereafter he was referred to State Dispensary, Amnour for treatment where he was examined by the doctor for his injuries. 3. On the basis of the above Fardbeyan of the informant Amnour P.S. case no. 85 of 1984 was instituted and the police after completing investigation submitted charge sheet against the appellant and two others on the basis of which cognizance was taken and appellant along with other accused was committed to the Court of Sessions. After commitment charge under section 307/34 of the I.P.C. was framed against the appellant and co- accused Chandra Pandey and Radhika Devi (who are now dead). The accused persons denied the charges and then they were put on trial and by the impugned order they were convicted as stated above. 4. From the perusal of the impugned judgment as well as the Lower Court record it appears that in order to prove its case the prosecution has examined altogether seven witnesses namely Indra Deo Pandey (P.W.1), Abdul Bari (P.W.2), Bishwanath Thakur (P.W.3), Deonath Prasad (P.W.4), Banaras Pandey (P.W.5), Dr. Suresh Chandra Srivastava (P.W.6) and S.I. 3 Jainul Abidin (P.W.7), out of the above said witnesses P.W.5 is the informant of this case, P.W.6 is doctor who has examined the injury of Banaras Pandey and P.W.7 is the investigating officer of this case. Out of the remaining witnesses P.W.1 is co-villager and P.W.2, P.W.3 and P.W.4 are hostile witnesses, they have not supported the prosecution case. Thus the prosecution case is based upon the testimony of P.W.1 and P.W.5, as P.W.5 is the informant as well as the injured and P.W.1 has claimed to be an eye witness of the occurrence but as per para.5 of P.W.7, who is investigating officer of this case P.W.1 was never an eye witness of the occurrence and he was simply a hearsay witness, who had stated before him that on hulla when he went to the place of occurrence he found Banaras Pandey lying on the ground with mark of injury and then some persons who were present at the place of occurrence disclosed the name of his assailant which goes to show that P.W.1 was not an eye witness of the occurrence and for the first time in court he presented himself as eye witness of the occurrence. So he cannot be treated to be wholly reliable witness. 5. Thus there remains the solitary evidence of P.W.5 on record. His evidence is that at the time of occurrence he was sitting in the Sehan in front of his Darwaza and in the mean time Ram Chandra Pandey and Jagdish Pandey (appellant) came there. They told him that due to the falling of leaves from his Neem tree the drain belonging to them had been filled up whereupon he replied that how could he stop falling of leaves from the tree. At this appellant Jagdish Pandey gave order for assault and then Ram Chandra Pandey gave two Farsa blow on his head, as a result of which he sustained two Farsa injuries on his head due to which he fell down and then appellant Jagdish Pandey gave several axe blow on his abdomen, chest and shoulder. The informant received cut injuries on all the three places of his body. He has 4 further deposed that Radhika Devi also assaulted him with a wooden piece and Jai Kumari assaulted him with axe on his leg. 6. It has been submitted by the learned advocate of the appellant that as the rest two appellants namely Chandar Pandey @ Ram Chandra Pandey and Radhika Devi are dead, as such it becomes immaterial that whether the assault attributed to them finds support from the medical evidence (P.W.6) or not but so far this appellant is concerned the evidence of doctor Suresh Chandra Srivastava, who has been examined as P.W.6 shows that the assault attributed to this appellant does not find corroboration from his evidence. According to P.W.6 he had found one incised wound 1”x 1/4” x muscle deep on right leg of the informant, another injury of 1/2"x 1/4"x muscle deep incised wound on right leg. He also found another injury of 1/2” x 1/4"x muscle deep incised wound between the knee and the ankle of the informant. As per the evidence of the informant all these injuries are attributed to Radhika Devi. According to evidence of P.W.6 he had found two other incised wound on the head of the informant and as such, according to the evidence of the informant P.W.5 these two injuries are attributed to appellant Ram Chandra Pandey (who is now dead). No other incised wounds of the sharp cutting weapon were found on the person of the informant by P.W.6 and the remaining injuries were either abrasion or bruise. According to the evidence of P.W.6 he had found three abrasions on the person of the informant i.e. on abdomen, right chest and right shoulder but none of these injuries were caused by sharp cutting weapon. Learned advocate of the appellant has submitted that all the above mentioned injuries were caused by hard and blunt substance and according to evidence of P.W.5 this appellant had caused injuries on his abdomen, chest and on his shoulder with axe. There is no two opinion that axe is a weapon which causes sharp cutting injury but strangely enough the injuries which were attributed to this 5 appellant caused by axe were found by the doctor having been caused with hard and blunt substance which goes to show that the manner of occurrence does not find support from the evidence of doctor. 7. Under such circumstances, in the absence of independent witnesses it is difficult to hold that the prosecution has been able to substantiate the charge beyond all reasonable doubts. I am, therefore, of the opinion that the appellant deserves the benefit of doubt. 8. In the result, there is merit in this appeal and the same is hereby allowed. The conviction and sentence passed against the appellant are hereby set aside and the appellant Jagdish Pandey is acquitted of the charge under section 307/34 of the I.P.C. after giving him benefit of doubt. The appellant is on bail, as such he is ordered to be discharged from the liabilities of his bail bonds. ( Syed Md. Mahfooz Alam, J. ) Patna High Court Patna The 9th July, 2008 N.A.F.R./Uday/