CRIMINAL APPEAL No.315 OF 1988 ----- Against the judgment of conviction dated 07.05.1988 and the order of sentence dated 07.05.1988 passed by Sri Narendra Kumar Lal, 4th Additional Sessions Judge, Gaya, in Sessions Trial No. 12 of 1985/ 29 of 1985 Sessions Judge, Gaya. ----- Yugal Yadav, Son of Chitbahal Yadav, resident of village- Sulemanpur, Police Station-Kako, District- Gaya......................Appellant. -Versus- The State of Bihar.............Opposite Party. ----- For the Appellant: M/S. Hemendra Prasad Singh, Upendra Kumar, Neeraj Kumar @ Sanidh and Kumari Sujat Sinha, Advocates. For the State : Miss. Shashibala Verma, A.P.P. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH ----- S.K.Sharma & D.K.Singh,JJ The sole appellant has challenged the judgment and order of conviction dated 07.05.1988 in Sessions Trial No. 12 of 1985/ 29 of 1985 passed by Sri Narendra Kumar Lal, the learned IVth Additional Sessions Judge, Gaya, whereby the appellant was convicted under Section 302 of the Indian Penal Code and thereby sentenced to undergo rigorous imprisonment for life. 2. The prosecution case relates to the fardbeyan of one Chandra Mohan Sharma recorded by S.I. of Kako Police Station on 23.02.1983 at 7.30 P.M. at Lodipur Tand Khandaha Pyne to the 2 effect that on 23.02.1983 at 4.30 P.M. the informant was in his Maize field situated south-west to the village of the informant adjacent to Kazi Sarai, Kako road, Katchha, at about 4.45 P.M. the informant’s brother, Chandradeep Singh (deceased), was coming from Kazi Sarai Market on a Bicycle. It is further stated that the deceased asked for a Lota (water container) for easing out, from one Ram Suchit Mahato(not examined),then Ram Suchit Mahto brought the Lota full of the water. In the meantime, Yugal Yadav( appellant) came and asked for one Bidi from the deceased and when the deceased was giving Bidi to Yugal Yadav, then Yugal Yadav caught hold of the victim. Thereafter, the victim tried to get himself released from the clutches of Yugal Yadav then from eastern side of the road from the Canal (Pyne) four persons came out. Out of them, two were armed with rifle whereas two others were armed with Sickle(Fasuli). Then the persons armed with rifle fired at the informant’s brother causing injuries but even then, the victim began fleeing away, on which Yugal Yadav fired from his pistol hitting on the back of the deceased. Thereafter, the other accused fired from his rifle as a result of which the 3 victim fell down. Thereafter, the informant raised alarm whereupon Brajnandan Sharma (P.W.1) and Anil Sharma (P.W. 2) and others came running and saw the accused persons fleeing away towards west-southern direction. It is claimed by the informant that he can identify the accused persons by seeing their faces. The reason for alleged occurrence is that the appellant and others were the local criminals, who were being opposed by the informant’s brother. 3. The First Information Report also bears the signature of P.W.1 (Brajnandan Sharma) and P.W.4 (Raj Nandan Singh) who have not been examined. Though the F.I.R. was registered on 23.02.1983 at 11.00 P.M. but it appears that it was transmitted to the learned 4th Additional Sessions Judge, on 28.02.1983 after five days of the alleged occurrence. 4. The police after investigation submitted charge sheet. Consequently, the cognizance was taken and the case was committed to the court of Sessions. The charge under Section 302 of the I.P.C. was framed against the accused (the sole appellant). It appears that the F.I.R. was lodged only against this present appellant and the charge sheet was also 4 submitted against the appellant only. 5. The prosecution, in order to substantiate the charges, examined 10 witnesses of which P. Ws. 1, 2 and 3 claim to be the witnesses to the occurrence whereas P.W. 4 has stated that he has not seen the occurrence as he reached the place of occurrence subsequently, and he saw empty cartridges of rifle, blood stained earth, one red coloured suit-case and some smoking materials in the pocket of deceased and some amount of money. P.W. 5 (Jai Prakash Sharma) is also a post occurrence witness as he reached at the spot subsequent to the death of the brother of the informant. P.W.6 (Abhiram Singh) is the formal witness and he had identified the signature of the Investigating Officer, namely, Shyamdeo Prasad on the fardbeyan (Ext. ½). P.W. 7 (Nand Kishore Singh) has identified the signature of doctor on the post mortem report (Ext.2) who in cross-examination has admitted that the signature of the doctor does not reflect his designation nor the post mortem report reflects any stamp of the hospital. P.W.8 (Bhuneshwar Singh) who has 5 proved the handwriting of the fardbeyan which has been marked as Ext.-3 but in cross- examination he has admitted that he has never worked with the police officer who recorded the fardbeyan. P.W.9 (Dr. B. B. Sahay) is the doctor posted in the Sub Divisional Hospital, Jehanabad, as Deputy Superintendent, who conducted the post mortem examination on the dead body of the deceased on 24.02.1983 at 9.30 A. M. and found five injuries. P.W. 10 is Jagat Narayan Singh the formal witness who has proved the formal F.I.R. which has been marked as Ext.4. 6. The defence has also examined two witnesses of which Ram Charitar Prasad (D.W. 1) has proved the affidavits sworn by Dharamshila Devi and Ram Suchit Mahto. Jagat Narayan Singh(D.W.2) has proved 65 pages of the case diary of Ghoshi P.S. Case No. 45(3) of 1983 which was registered in pursuance to the murder of Raja Ram Prasad. The death of the deceased Chandradeep Singh is an admitted fact. 7. The only question which was to be determined by the learned trial court was that whether P. Ws. 1 to 3 who claim themselves to 6 be the eye witnesses to the actual occurrence have actually seen the occurrence or not or whether the prosecution has been able to prove the case against the sole appellant beyond the shadow of reasonable doubt. 8. After scanning the witnesses of P. Ws., the learned trial court found the sole appellant guilty and accordingly, the judgment of conviction was recorded. 9. Now the question for determination before this court is whether the judgment and order of conviction can be sustained on reappraisal of the evidences on record or the prosecution has been able to prove the charges beyond shadow of reasonable doubt against the sole accused. 10. The F.I.R. suggests that the actual occurrence was witnessed by Ram Suchit Mahato who has been withheld by the prosecution. According to the evidence of P.W.3, he was in his Maize field when he saw the deceased coming from Kazi Sarai Market then he stopped near the Canal(Pyne) and asked for a Lota (water container) from Ram Suchit Mahato for easing out in the field. Hence, it appears that the witness who was with deceased at the time of the occurrence who would have unfolded the 7 actual prosecution case in much better way, has been withheld by the prosecution. 11. The informant (P.W.3) in his evidence has stated that he was in his Maize field situated west to the road then he saw his brother coming on a bicycle near the Canal and then Yugal Yadav (appellant) asked for a Bidi and when the deceased was giving Bidi to Yugal Yadav, then he caught hold of the deceased. In the meantime, four persons came out from the Canal, of whom two were armed with rifle whereas other two were armed with Sickle (Fasuli) then the persons armed with rifle fired causing injury to the informant’s brother. Thereafter the appellant fired from the pistol causing injury to the back of the deceased then the second person armed with rifle fired as a result of which the brother of the informant fell down thereafter the informant raised alarm and then P.Ws.1 and 2 reached at the spot. The informant in paragraph no.2 of his evidence, stated that the appellant and other accused persons were being opposed by the deceased which was the reason for committing his murder. Thereafter the fardbeyan of the informant was recorded to which P. Ws. 1 and 4 were made attesting 8 witnesses. P.W.3 in paragraph no. 8 of his evidence has admitted that by the time he reached near his victim brother, he was dead and after his reaching, P.Ws.1 and 2 reached the place of occurrence and thereafter five-six people came. From the evidence of P.W.3, it appears that the story of asking of some water container from Ram Suchit Mahato by the deceased has been given a go-bye by the informant during his evidence, probably due to the reason that Ram Suchit Mahato not came forward to depose in the matter, which clouds the credibility of this witness in unfolding the true version of the prosecution case. The other fact which is apparent from P. W. 3’s evidence is that P. Ws. 1 and 2 definitely came at the place of occurrence after death of the informant’s brother. Though the motive has been assigned by P.W.3 referring to the criminal antecedent of the appellant and others but in the entire evidence P.W.3 has not mentioned about any case which was registered against the present appellant or any instance to which the deceased was objecting. Hence it appears that the motive 9 has been casually alleged but it has not been proved. So far as the evidence of P. Ws. 1 and 2 are concerned, though in the court they claim themselves to be the witnesses to the occurrence but from the first version of the informant as recorded in the fardbeyan as well as the evidence of P.W.3, it appears that admittedly P. Ws. 1 and 2 reached at the spot after death of the victim and this fact has been admitted by P.W.3 in paragraph no. 8 of his evidence that when he reached near the victim, he was already dead and thereafter P. Ws. 1 and 2 reached at the spot. 12. The doctor who has conducted the post mortem has found altogether five injuries which are as follows: i) Whole face and the right side of the neck singed with pin-head sized particles of gun-powder. ii) Pea-sized lacerated punctured wound over the upper lip slightly towards the right. Right upper-lateral incisor tooth is dislocated from the socket. iii) Pea-sized lacerated punctured wound leading to the skull cavity, over the left side of the face just in front of the left 10 ear. The left temporal bone is fractured. iv) Lacerated punctured wound ½” X ½” X leading to the skull cavity over the vault of the head slightly towards the right. Right temporal bone is fractured. Brain matter has come out through this wound. v) Lacerated punctured wound ½” X ¼” leading to the chest-cavity over the back right lower part. Right ninth rib is fractured. Though the injury nos. (ii) to (v) are lacerated and punctured wounds but as per the opinion of the doctor death was caused by fire arms injuries. Though in paragraph no. 6 during cross-examination, the doctor has clarified that the punctured wounds are generally possible by sharp pointed weapons like Bhala and Barichha. Though doctor has found one bullet near the injury no.5 and although the injury no. V as per the fardbeyan might have been caused by this appellant but the nature of injury No. V is lacerated and punctured which was definitely caused subsequent to the injury caused by rifle but from perusal of the post mortem report, it appears that none of the injuries to the deceased have been caused by rifle. Though it is definite case of prosecution that the first and third injuries 11 were caused to the deceased by rifle. Hence the post mortem report also clouds the prosecution version that two injuries were caused to the deceased by rifle. 13. Hence in our opinion, P. Ws. 1 to 3 who claim themselves to be eye witnesses, in view of non-corroboration of the alleged injury by post mortem report, it appears that P. Ws. 1 to 3 have either not seen the occurrence or have not come forward to disclose the actual and truthful version of the prosecution case. 14. The other contention of the learned counsel for the appellant is that admittedly the occurrence took place at 4.45 P.M. on 23.02.1983 whereas the fardbeyan was recorded at 7.30 P.M. and the F.I.R. was registered at 11. P.M. on the same day but the F.I.R. was transmitted to the learned Additional Sessions Judge on 28.02.1983 after five days of registration of the First Information Report which is in, complete derogation to the provision under Section 157 of Cr.P.C. 15. From perusal of the F.I.R., the aforesaid contention of the appellant appears to have substance and delay in transmission of the F.I.R. to the learned trial court has not been explained by the prosecution and the 12 aforesaid laches remained unexplained also due to non-examination of the Investigating Officer. 16. Learned counsel for the State, Miss. Shashibala Verma, admits that there is no explanation with regard to this unexplained delay in transmission of the F.I.R. Hence the contention of the appellant, that F.I.R. was lodged after making improvements, antedating and examining the post mortem report, has substance. 17. It is further contended on behalf of the appellant that the exact place of occurrence has not been fixed, as per the F.I.R. the occurrence took place at Lodipur Tand (Pyne) water channel which is coming from Kazi Sarai near the canal. P.W.1 in paragraph no.5 of his evidence stated that the place of occurrence is 400 yards North-West to the village- Bardki Lodipur whereas village Chotaki Lodipur is 125 Gaj west to the place of occurrence. P.W. 2, in paragraph no.5 of his evidence has described the place of occurrence near the village Badki and Chotaki Lodipur. P.w.3 in his evidence had described the place of occurrence at Lodipur road near 13 the Canal. Hence it appears that the exact place of occurrence has not been described by prosecution witnesses. Here also non examination of the Investigating Officer has led to non-fixing the exact place of the occurrence though the dead body was recovered from the Canal. 18. Though the materials on record suggest that the Investigating Officer collected the blood stained earth from the place of occurrence but due to non-examination of the Investigating Officer, it is not apparent whether it was transmitted to the chemical analyst or not, as no chemical analyst report has been brought on record. 19. So far as the manner of the occurrence is concerned, the occurrence is in two parts. In the first part, it is alleged that the victim asked for one Lota (water container) from Ram Suchit Mahato which was brought by Ram Suchit Mahato but this part of the manner of occurrence has not only been given go-bye by the informant, when he came to be examined as P.W.3 during trial, but also by P. Ws. 1 and 2. Though P.W.2 has admitted that Ram Suchit Mahato was present at the place of occurrence but P.W. 2 has not supported the 14 first part of the manner of occurrence as claimed by informant in the fardbeyan. So far the second part of the manner of the occurrence is concerned, according to the fardbeyan, firstly this appellant caught hold of the deceased thereafter one accused fired with rifle causing injury to the victim. Thereafter this appellant caused pistol injury on the back of the victim and then, the third accused caused rifle injury, as a result of which the victim fell down. The post mortem report reflects altogether five injuries but the victim actually received only four injuries, as injury no. IV is wound of exit of injury No. III. Though the appellant is alleged to have caused injury no. V on the back of the victim causing the fracture on right ninth rib, the nature of injury no. V has been described as lacerated punctured wound whereas appellant is alleged to have fired from pistol. Although it is alleged that victim was running even after receiving injury in the back but the injury in the back reflects that no one can run after receiving such injury, which makes the prosecution case doubtful. The allegation is of three assaults, two by rifle and one by pistol, whereas the victim received four injuries, 15 moreover injury no. (ii) and (iii) are described as “pea sized” lacerated punctured wounds which can not be caused by rifle. Moreover, the informant has alleged in the F.I.R. that two accused were armed with rifles whereas two other with sickles but it appears that after verifying the post mortem report, the appellant is alleged to have fired with pistol. This doubt gets confounded due to transmission of F.I.R. to the court after five days of the occurrence. Hence in our view, the second part of the manner of the occurrence is also not proved by the prosecution beyond the shadow of the reasonable doubt. 19. The other contention of the appellant is that the vital prosecution witnesses have been withheld which has caused prejudice to the appellant as Ram Suchit Sharma, being eye witness to the occurrence, has been withheld. Similarly, the Investigating Officer of the case has not been examined. It is true that Ram Suchit Mahto was eye witness to the first part of the occurrence, hence his examination would have unfolded the prosecution case in a much better way. Similarly, non-examination of the Investigating Officer has also prejudiced the 16 case of accused, as in the F.I.R. there is allegation against three accused to have fired but materials on record does not reflect as what happened with regard to other two accused. 20. The other contention of the appellant is that the appellant has been implicated in the present case at the behest of co-villager Sachida Nand Singh with whom appellant has land dispute. The appellant has not brought on record any material to suggest appellant’s enmity with Sachchida Nand Singh or to the effect that Sachchida Nand Singh, in any manner, influenced the informant for implicating the appellant. It is further contended that one Raja Ram Singh and his son, who were killed about a month after the murder of the brother of informant in which the informant, P. Ws. 1 and 2 were accused and hence it is suggested that informant has suspicion against his agnate Raja Ram Singh and appellant has falsely been implicated only because Raja Ram Singh and his son were killed after the present occurrence in which informant, P. Ws. 1 and 2 were accused does not lead to a reasonable inference that brother of informant was killed by Raja Ram Singh. 17 21. On scanning the evidence of P. Ws., we come to the conclusion that as per the informant’s (P.W.3) case in the fardbeyan it was Ram Suchit Mahato only, who saw the actual occurrence and in view of non-corroboration of the injuries as is reflected from the doctor’s evidence, the evidences of P. Ws. 2 and 3 also get clouded. Moreover the manner of occurrence and place of occurrence have also not been proved by the prosecution beyond the shadow of reasonable doubt. On the basis of the evidence on record it is difficult for this Court to uphold the impugned judgment and order of conviction, and as such, the same is set aside, the sole appellant is on bail, hence he is discharged from the liabilities of his bail bond. The appeal stands allowed. Patna High Court Dated 18th August, 2010. U.K./N.A.F.R. (Shyam Kishore Sharma,J) (Dinesh Kumar Singh,J)