IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No. 480 of 1989 Against the order of conviction and sentence dated 19.9.1989 passed in Sessions Case No. 33 of 1985 by the learned Additional Sessions Judge-XI, Munger. ========================================================== 1. Somar Singh, son of Kaleshwar Singh 2. Mahadev Singh, son of Badhi Singh Both resident of Sakinan Aatsahiya, P.S.-Mufassil, District-Munger. .... .... Appellants Versus The State of Bihar .... .... Respondent ========================================================== Appearance : For the Appellants : Mr. Neeraj Kumar, Advocate Mr. T.P. Sharma, Advocate For the Respondent : Miss Shashi Bala Verma, APP. ========================================================== CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH ******* ORAL JUDGMENT (Per: HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH) ************* The appellants have challenged the judgment and order dated 19.9.1989 passed in Sessions Case No. 33 of 1985 by the learned Additional Sessions Judge-XI, Munger, convicting them for the offence punishable under Sections 302, 148 and 379 of the Indian Penal Code and sentencing them to undergo R.I. for life, R.I. for six months and R.I. for one year respectively for each of the offence. However, all the sentences have been ordered to run concurrently. 2. The prosecution case is based on the fardbeyan (Exhibit-1) of Inderdeo Singh (since deceased) which was recorded on 11.6.1981 at 11.00 a.m. in Gogri Government Hospital by Akhouri Bipendra Bihari Prasad 2 (P.W.-1), the Officer-in-Charge of Gogri police station. The informant, a resident of village-Arsahiya Diara of Munger Muffasil police station, has alleged in his fardbeyan that 2 bigha and 2 Katha land of one Ramswarup Sao was under his cultivation. On 11.6.1981 at about 8.00 a.m., he was going to deposit Rs. 2,500/- in the Maheshkhut branch of the State Bank of India and when he reached near the field of Basudeo Mistri, accused Somar Singh (appellant no. 1) armed with Lathi, Ramswarup Singh (since acquitted) armed with a firearm, Bhola Singh ( since acquitted) armed with Lathi, Ram Sakal Singh (since acquitted) armed with spear, Mahadeo Singh (appellant No. 2) armed with a firearm, Sarjug Singh ( since acquitted) armed with Lathi and Mahendra Singh (since acquitted) armed with spear surrounded him and they all indiscriminately assaulted upon him. The accused Ramswarup Singh and Mahadev Singh, who were armed with firearm threatened to do away with his life. They snatched the money from his pocket. The motive attributed for the alleged assault is that in the preceeding year the land of Ramswarup Sao was taken for cultivation by the accused persons but in the current year the informant took the land from him for the purposes of cultivation. Lastly, it is stated that his co-villager Sheonandan Singh (P.W.-4) was witnessing the entire incident from a very short distance. He rescued him from the assault being made by the accused persons. After the alleged assault, the accused persons who were all his co- villagers fled away towards village-Arsahiya. Subsequently, on hulla, his family members came to the place of occurrence and took him to hospital where his fardbeyan was recorded. 3. Before we proceed further, we must note a peculiar fact which we 3 find in the fardbeyan. The two lines written immediately after the fardbeyan was reduced into writing reads as follows:- “The oral statement was read over and finding the same to be correct the informant put his left thumb impression over it.” The thumb impression of the informant does not find place beneath that. What is found beneath that is the injuries found on the person of the informant noted by the Police Officer who recorded the fardbeyan. They are six in number. The L.T.I. of the informant is found beneath the aforesaid noted injuries. In the right hand side of the L.T.I. of the informant, we find the signature of P.W.-1. The fardbeyan has not been witnessed by any other person. 4. The Officer-in-Charge, Gogri police station (P.W.-1) after recording the fardbeyan came back to the police station. He made a noting on the fardbeyan itself that since the offence alleged is cognizable in nature and the place of occurrence falls within the territorial jurisdiction of Munger Muffasil police station, thus, the fardbeyan be transmitted to the Officer-in- Charge, Munger Muffasil police station for necessary action. It appears that the said fardbeyan was, thereafter, received in the Munger Muffasil police station on 12.6.1981 at 11:00 a.m. and on the basis of the said fardbeyan, Muffasil P.S. Case No. 193 dated 12.6.1981 was registered under Sections 147, 148, 323, 324, 379 of the Indian Penal Code. The Officer-in-Charge of the police station entrusted investigation of the case to Mr. R.R. Prasad, S.I. of police (P.W.-9). The F.I.R. was transmitted to the court on 13.6.1981 and the same was received in the court of C.J.M., Munger on 15.6.1981. It is to be noted here that the time of death of informant has not been proved by 4 any prosecution witness in course of trial though P.W.-8 Dr. Om Prakash Sinha who examined the informant initially while he was alive and issued injury report and P.W.-2 Dr. Ramanand Kumar who conducted the post mortem examination on the dead body of the deceased have been examined on behalf of the prosecution in course of trial. The doctor conducted the post mortem examination on 12.6.1981 at 11:30 a.m. and has opined that the time elapsed since death was between 24-36 hours. 5. In course of investigation pursuant to the death of the informant which apparently took place immediately after the fardbeyan by order dated 7.7.1981 section 302 IPC was added in the F.I.R. The police on conclusion of investigation submitted chargesheet against all the seven named accused persons. The learned Magistrate took cognizance of the offence, supplied police papers to the accused persons in terms of Section 207 Cr. P.C. and committed the case to the Court of Sessions. All the seven accused persons were charged for the offence under Sections 302/149, 148 and 379 of the Indian Penal Code. They did not plead guilty to the charges and claimed to be tried. 6. The prosecution in order to prove the charges examined altogether nine witnesses. As stated above, P.W.-1 Akhouri Bipendra Bihari Prasad recorded the alleged fardbeyan (Exhibit-1) and proved the same in course of trial. P.W.-2 Ramanand Kumar is a doctor, who at the relevant time was posted as Civil Assistant Surgeon in Khagaria Hospital and conducted the post mortem examination on the dead body of the deceased. The post mortem report (exhibit-2) has been proved by him in course of trial. P.W.-3 Akhileshwar Singh, P.W.-4 Sheonandan Singh, P.W.-5 Ramjee Singh and 5 P.W.-6 Siro Singh have been declared hostile by the prosecution as they did not support the prosecution case in course of trial. P.W.-7 Basudeo Singh, brother of the informant (since deceased) claims to be an eye-witness of the occurrence. P.W.-8 Om Prakash Sinha is another doctor who had examined the injured prior to his death and had issued injury report (Exhibit-3) and proved the same in course of trial. P.W.-9 Raja Ram Prasad is a Sub- Inspector of Police who was entrusted with investigation and who investigated the case and submitted charge sheet. He has proved the formal F.I.R. (Ext-4). 7. The defence has not examined any witness on its behalf. However, a certified copy of an order dated 8.12.1979 passed in Muffasil Case No. 11- 10-79 and certified copy of the bail application filed on behalf of the informant in that case was filed in order to show that the deceased Inderdeo Singh was a criminal and was an accused in a case registered for the offence under Section 396 of the Indian Penal Code. The certified copy of order dated 8.12.1979 passed in Muffasil P.S. Case dated 11-10-1979 has been marked as Exhibit-A by the trial court. 8. From the trend of cross-examination of prosecution witnesses and the statement of accused persons recorded under Section 313 of the Code of Criminal Procedure, it appears that the defence has taken a plea of innocence, false implication and the deceased being murdered by some unknown persons as he indulged in criminal activity. The trial court, on conclusion of investigation, acquitted five of the co-accused persons who faced trial alongwith the appellant namely, Ramswarup Singh, Bhola Singh, Sarjug Singh, Ram Sakal Singh and Mahendra Singh giving them benefit of 6 doubt but convicted and sentenced the appellants in the manner stated above. The only ground on the basis of which the case of the appellant have been distinguished with those of the acquitted accused persons is that P.W.- 7 Basudeo Singh took name of the appellants specifically in his deposition, who assaulted his brother Inderdeo Singh (since deceased) alongwith 5-7 unknown persons with Lathi and Bhala. Thus, the trial court took the view that the allegation as against the appellants by the informant (since deceased) finds corroboration in the deposition of P.W.-7. But, since, P.W.- 7 did not specifically name the other accused persons namely Ramrup Singh, Bhola Singh, Sarjug Singh, Ram Sakal Singh and Mahendra Singh the trial court acquitted them giving benefit of doubt. The trial court has also placed its reliance on the fardbeyan for convicting the appellants and has treated the fardbeyan as dying declaration admissible under Section 32 of the Evidence Act. 9. The learned counsel for the appellants contends that no reliance can be placed on the fardbeyan of the deceased. The same cannot be treated as a dying declaration. The genuineness and the bonafide of the fardbeyan has seriously been challenged. 10. It is also submitted that as per F.I.R., P.W.-7 was not a person present at the place of occurrence and, therefore, his deposition in the court to the extent of being eye-witness of the occurrence cannot be relied upon. It is also contended that from the nature of injury as disclosed in the post mortem report as also from the deposition of the doctor who conducted the post mortem examination, it can safely be presumed that the informant could not have been able to speak and, thus, also the fardbeyan cannot be 7 relied upon and treated as an admissible piece of evidence in terms of Section 32 of the Evidence Act. 11. We have heard the parties and have seen the evidence on record. 12. From the deposition of witnesses examined in course of trial, we find that apart from official witnesses such as doctors and the police officers, there is only one independent witness, i.e., P.W.-7 Basudeo Singh who has supported the prosecution case in course of trial. First of all we would like to deal with the fardbeyan in question. Admittedly, as per prosecution version, the fardbeyan was recorded on 11.6.1981 at 11:00 a.m. in the Gogri Government Hospital by P.W.-1. The prosecution has not thrown any light on the issue as to how Akhouri Bipendra Bihari Prasad, the then Officer-in-charge of Gogri Police Station reached in the Government Hospital. P.W.-1 has been examined in the court. He has not uttered a word in this regard. He has stated in his chief that he inspected injuries on the person of the informant and issued an injury report in this regard but no such injury report issued under the signature of P.W.-1 has been brought on record. What is curious to notice is that we find injury report noted by P.W.- 1 just beneath the oral statement of the informant. As noted above, we do not find the L.T.I. of the informant at the place where it is written that the informant has put his L.T.I. P.W.-1 has started writing after the purported statement of the informant and wrote altogether six injuries found on his person and thereafter the L.T.I. of the informant finds place. This fact creates a suspicion. It was for the prosecution to explain as to why the L.T.I. of the informant was taken at a place different from where it was meant for. Nothing has been explained in this regard. 8 13. The other thing which creates suspicion is the timing of the fardbeyan. According to prosecution, it was recorded at 11:00 a.m. on 11.6.1981. As noted above, the fardbeyan contains six injuries on the person of the informant, out of which, 3 are said to be bandaged wound. If three of the injuries were bandaged wound, the injured must have received some sort of treatment prior to 11:00 a.m. on 11.6.1981. The prosecution has not brought anything on record to show that the injured informant was provided with any medical assistance prior to recording of the fardbeyan. To the contrary, P.W.-8 Dr. Om Prakash Sinha, a Civil Assistant Surgeon posted in Khagaria Sub-Divisional Hospital in his deposition stated that he examined the injured Inderdeo Singh on 11.6.1981 at 1:30 p.m. and found the injuries on his person and issued injury report (Exhibit-3). Thus, if the injured was first treated at 1:30 p.m. on 11.6.1981 then there was no question of finding bandaged wound on the informant and if he was treated earlier by any doctor, the same being not explained by the prosecution would be deemed to be suppression of a material fact from the court. 14. The another important aspect in this regard is that the prosecution through claims the fardbeyan to be recorded in a Government Hospital by a Police Officer but the same has neither been witnessed by any Magistrate nor by any doctor nor by any staff of the hospital which creates doubt about the bonafide and genuineness of such fardbeyan. P.W.-1 was cross- examined by the defence. He has admitted in cross-examination that he did not take any opinion of doctor regarding the mental state of the informant while recording the fardbeyan. He further admitted that he did not take signature of any officer or staff of the hospital on the fardbeyan. He did not 9 attest the L.T.I. of the informant separately and he took the L.T.I. of the informant beneath the detail of injuries noted on the fardbeyan in his own writing. Such admission on the part of P.W.-1, who is scribe of the fardbeyan makes the alleged fardbeyan which has been treated as a dying declaration by the trial court untrustworthy. We find that doctor Om Prakash Sinha (P.W.-8) who initially examined the injured could find seven injuries on the person of the deceased. He issued the injury report (Exhibit- 3). According to him, the informant sustained the following injuries which are as follows:- (i) Incised wound ¾” x 1/6” x Sub-cutaneous tissue deep over post lateral aspect of lower 1/3rd of left arm- caused by a sharp cutting weapon. (ii) One punctured wound ½” x ¼” x ½” over medial aspect of middle 1/3 of left leg- caused by sharp pointed instrument. (iii) One lacerated wound 3/4” x 1/6” x sub- cutaneous tissue deep over left knee caused by hard blunt object. (iv) One lacerated wound ½” x ¼” x sub-cutaneous tissue deep over left medial wall caused by hard object. (v) One lacerated wound ¾” x 1/6” x sub-cutaneous tissue deep over dorsum of right foot caused by hard blunt object. (vi) One bruise left scapular region 1 ½ ” caused by hard blunt substance. (vii) Dislocation of left shoulder caused by hard substance. 15. According to the doctor, who examined the injured while he was alive, all the injuries except injury no. (vii) which was dislocation of left 10 shoulder caused by hard and blunt substance were simple in nature. The injuries were aged within 6 hours from the time of examination. The examination was conducted on 11.6.1981 at 1.30 p.m. The examination-in- chief of the doctor was recorded on 8th January, 1988. A time petition was filed on behalf of the defence on that date. It appears from the record that the trial court disallowed the time petition and since the Lawyer failed to cross-examine the witness, he was discharged. 16. The doctor who conducted the post mortem examination has been examined as P.W.-2 in this case. He found the following ante mortem injuries on the person of the deceased, which are as follows:- (i) Incised wound 3 c.m. x 2 c.m. x ½ c.m. at two places on the right leg. (ii) Lacerated wound 4 c.m. x 2 c.m. x ½ c.m. at three places on the left leg. (iii) Several bruises of different shapes and sizes on the chest, back of the body and front scalp. 17. In his examination-in-Chief, Dr. Rama Nand Kumar (P.W.-2) has stated that injury no. (iii) was deep damaging the ribs, pleura and both lungs. 5th and 6th ribs of left side were fractured. Both side pleura and lungs were damaged. According to the doctor, the injuries were sufficient in the ordinary course of nature to cause death. He was cross-examined. In cross- examination, he has clearly stated that respiratory system is guided by the lungs. Damaging of lungs may cause stoppage of voice and the patient becomes unconscious. Respiratory system has connection with speaking power also. The respiratory system of the deceased in this case failed due to damage of lungs. It is surprising that the doctor P.W.-8, who initially examined the injured could not notice the serious injuries sustained by the 11 informant (since deceased). Surprisingly, he states that six out of the seven injuries were simple in nature. The only injury which was grievous in nature was dislocation of left shoulder. We find serious contradiction between injury report (Exhibit-3) issued by P.W.-8 (Dr. Om Prakash Sinha) and the post mortem report (Exhibit-2) issued by P.W.-2 (Dr. Ramanand Kumar). If the nature of the ante mortem injuries as stated by P.W.-2 were so serious, again, it becomes doubtful as to whether the informant was even in a condition to speak at the time when it is alleged that his fardbeyan was recorded. 18. When we look to the deposition of the prosecution witnesses, another very important and glaring aspect emerge. Admittedly, as per the prosecution, the victim died in course of treatment in a Government Hospital. No chit of paper has been brought on record to show that any treatment was ever rendered to him in the hospital. The prosecution is silent regarding the time of death of the deceased. The only material which can throw some light in this regard is the post mortem report (Exhibit-4). The post-mortem examination on the dead body of the deceased is said to have been conducted on 12.6.1981 at 11.30 a.m. The doctor has made a note that the time elapsed since death was within 24-36 hours, meaning thereby that the deceased died between 11:30 p.m. on 10.6.1981 to 11.30 a.m. on 11.6.1981. The alleged fardbeyan has been recorded on 11.6.1981 at 11.00 a.m. The silence of the prosecution with regard to the time of death of the deceased either in oral evidence or by documentary evidence casts a serious doubt on the prosecution version as the deceased might have died much prior to the alleged time of fardbeyan said to have been recorded by P.W.-1. 12 This fact becomes further relevant as though the fardbeyan was recorded on 11.6.1981 at 11.00 a.m. The F.I.R. was registered at 11.00 a.m. on the next day i.e. on 12.6.1981. The F.I.R. was again not transmitted to the court forthwith in terms of Section 157 Cr. P.C. The F.I.R. was transmitted to the court on 13.6.1981. Again, the F.I.R. did not reach to the court within reasonable time. The same was received in the court after two days, i.e., on 15.6.1981. The delay at every stage i.e. at the stage of registration of F.I.R., at the stage of transmission of F.I.R. and at the stage of receipt of F.I.R. in the court has not been explained by the prosecution, making the prosecution case doubtful. 19. We now take up the deposition of P.W.-7 Basudeo Singh who is the sole eye-witness in this case. He happens to be the brother of the informant (since deceased). He claims himself to be a person working in the nearby field. According to him, he saw the appellants and 5-7 other miscreants assaulting the informant by Lathi and Bhala. He raised alarm and on his shouting the accused persons fled away. The informant disclosed him name of the appellants and 5-7 other persons who assaulted him. The informant also told him that they took away Rs. 2,500/- from his pocket. He states that a cot was summoned from the village and on the said cot the victim was carried to Gogri Hospital and from there, he was taken to Khagaria Hospital where he died. He has stated the time of occurrence to be 9:00 a.m. on 11.6.1981 in his examination-in-chief. In cross-examination, he says that the occurrence took place between 9.00-9.30 a.m. on the date of occurrence. He has denied the suggestion given by the defence that the informant was an accused in a case of dacoity and murder. When we closely 13 scrutinize the deposition of this witness, we find that in the fardbeyan, the informant has categorically stated that it was co-villager Shoenandan Singh (P.W.-4) who had witnessed the occurrence and who rescued him from the accused persons. He has not named Basudeo Singh, who was his own brother to be a person present at the place of occurrence or who made shouting and rescued the informant at the time of assault. To the contrary, in the fardbeyan, it is clearly stated that when the accused persons fled away towards their village, a hulla was raised and only, thereafter, his family members came, who carried him to hospital. If the fardbeyan is to be believed then, in that case, the presence of Basudeo Singh (P.W.-7) at the time and place of occurrence is completely ruled out. There is yet another thing to doubt presence of P.W.-7 at the time and place of occurrence. In the fardbeyan, the informant has stated that the occurrence took place at 8.00 a.m. whereas P.W.-7 has stated that the occurrence took place between 9- 9.30 a.m. P.W.-7 makes himself unreliable by denying the fact that the deceased was facing criminal prosecution for being accused in a case of dacoity and murder. The defence has brought on record the order dated 8.12.1979 which has been marked as Exhibit-A together with the certified copy of the bail application of the informant in that case. Exhibit-A clearly shows that the informant was an accused in a case registered for the offence under Section 396 of the Indian Penal Code. As noted above, the accused persons in their statement under Section 313 Cr. P.C. have clearly stated that the victim was killed in a different manner by some unknown person and the accused persons being co-villagers have falsely been implicated in this case. The time of death mentioned by the doctor in the post-mortem 14 report is more compatible with the defence taken by the accused persons than the version of the prosecution. 20. Having noticed the weaknesses as discussed above in the prosecution case, we find it difficult to uphold the conviction of the appellants. The prosecution has apparently failed to prove the charges beyond reasonable doubt. In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence is, hereby, set aside. The appellants are discharged from liabilities of their bail bonds. The Patna High Court The 11th of November, 2011 Sanjeet/NAFR (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.)