CRIMINAL APPEAL (DB) No.271 OF 1989 ***** Against the judgment of conviction and order of sentence dated 6th June, 1989 passed by the Sessions Judge, Begusarai in Sessions Case No. 159/1986. ----- MD. MURTAZA KASAI, SON OF CHOTTAN MIAN, RESIDENT OF VILLAGE CHOTTI BALIA MANSOOR CHAK, POLICE STATION BALLIA, DISTRICT- BEGUSARAI. ----------(Appellant) Versus THE STATE OF BIHAR -----------(Respondent) For the Appellant : Mr. Ramakant Sharma (Senior Advocate) Mr. Rajesh Kumar (Advocate) For the Respondent : Ms. Shashi Bala Verma (APP). P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ----- S.K. Sharma & Akhilesh Chandra, JJ. The appeal has been filed by the sole appellant against the judgment of conviction and order of sentence dated 6th June, 1989 passed by Sessions Judge, Begusarai whereby the sole appellant was found guilty under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life in connection with a case as originally resulted vide Balia P.S. Case No. 175 of 1985. 1. The prosecution case has resulted on the basis of the fardbeyan of Naresh Prasad Sah (deceased) which was recorded by S.I. Md. Majid Huassain (not examined) at Balia Hospital at 10.15 a.m. on 25.09.1985 wherein Naresh Prasad 2 Sah alleged that on the preceding night at about 9.30 p.m. he was going to discharge his natural urge after closing his sweat shop. In the meanwhile, Md. Murtaza Kasai (the appellant) came for purchasing sweats. The informant replied that the sweat shop was already closed and the informant proceeded for discharging his natural urge. After evacuating, the informant returned but he saw the accused standing there. The informant’s servant Jogendra Prasad Sah (P.W.6) told that the appellant has consumes 600 gms. of sweats but the price has not been given. The informant asked the accused to pay the earlier dues. Thereafter, the accused fired from his pistol causing injury upon the stomach of the informant who fell down. Persons of the neighbourhood assembled and saw the accused escaping. The informant was kept on a rickshaw and was brought to Balia Hospital for treatment where he gave his fardbeyan which resulted into a case under Section 324, 307 of the Indian Penal Code and Section 27 of the Arms Act. The fardbeyan was sent to the court and it was received there on 27.09.1985. In course of investigation, the informant died at Patna 3 Medical College Hospital, Patna (P.M.C.H.) on 24.10.1985 and so Section 302 of the Indian Penal Code was added in the case. The case was investigated into and after investigation, chargesheet was submitted, cognizance was taken and the case was committed to the court of Sessions, where charge under Section 302 of the Indian Penal Code was framed and explained to the accused who pleaded innocence. Hence trial proceeded. 2. The defence of the appellant was of false implication and also that he was having butchery near the shop of the deceased and the deceased and his persons were determined to remove the shop of the appellant as it was giving bad smell to them and this was not liked which resulted into false implication. 3. In order to prove its case the prosecution has examined ten witnesses. They are Meghu Sah (P.W.1), Bishnu Deo Sah (P.W.2), Laddu Lal Rajak (P.W.3), Ram Bilash Chaudhary (P.W.4), Rajendra Chaudhary (P.W.5), Jogendra Prasad Sah (P.W.6), Batoran Chaudhary (P.W.7), Bijoy Bahadur Singh (P.W.8), Sarvan Kumar Singh (P.W.9) and Bishu Deo Sah (P.W.10). P.W.1 is father of the deceased. P.Ws.1, 2, 3, 6 and 7 4 are eye witnesses. P.Ws. 4 and 5 though cited as eye witnesses on behalf of the prosecution but were declared hostile by the prosecution because they have not been supported the prosecution case. P.Ws.8, 9 and 10 are formal witnesses who have proved the First Information Report, case diary and post-mortem report respectively. 4. The defence has examined Md. Abul Hassan (D.W.1) on the point of litigation between the families of the informant as well as the accused. 5. P.W. 1 is father of the informant. He has deposed that he saw his son being fired from the pistol which hit the deceased. The aforesaid version has come in the examination- in-chief in P.W.1. In paragraph-7 of his examination his attention was drawn as to whether he has told this fact to the Investigating Officer then he has denied that he has made such statement before the Investigating Officer. Later on, his attention was drawn as he has stated before the Investigating Officer that he came immediately after hearing the sound of firing and when he came out then he saw his son was lying. This 5 contradiction could not be explained because the Investigating Officer could not turn up though it was stated that he was not in a fit position to attend the court. It has been argued that if the Investigating Officer would have come then the defence could have drawn his attention. P.W.1 was not a witness of the occurrence because he has stated before the Investigating Officer that his arrival was only after hearing the sound of firing. In view of this fact, it is difficult to presume that P.W.1 was a witness of the occurrence. 6. P.W.2 has stated in his evidence that he saw the accused Md. Murtaza Kasai fleeing and saw Naresh Prasad Sah lying by the side of the shop. He has heard the sound of firing while he was locking his shop and at that time he saw the occurrence. He has deposed that Yogendra Prasad Sah told him that Md. Murtaza Kasai was fleeing towards north. He has further stated that there was a house situated just north of the place of occurrence and after that there was a Baasbari which was completely dark. If the evidence of P.W.2 is considered in entirety then it becomes suspicious whether he has seen the actual occurrence, because 6 according to him, the place of occurrence is north east corner of shop and in the Gali. Though he has claimed to identify in the flash of torch light but the torch was not produced. From the evidence of this witness P.W.2 it appears that he has not seen the occurrence of firing. 7. P.W.3 Laddu Lal Rajak has reached the place of occurrence and then he saw 6-7 persons there and for the first time he saw Naresh Prasad Sah who was discharging his natural urge and at that very time according to him the firing was done. According to this witness the place of occurrence is south-east corner of the shop. According to P.W.2 the place of occurrence is north-east corner of the shop. The Investigating Officer has not been examined so this contradiction could not be explained. According to P.W.1 and P.W.2 there was litigation between Naresh Prasad Sah and Md. Murtaza Kasai for the demand of price of sweats and in course of altercation Md. Murtaza fired but according to P.W.3 Naresh Prasad Sah was fired while he was discharging his natural urge and this version gives altogether different colour of the occurrence. 7 8. P.W.6 has stated that the verbal altercation between the informant and the accused person continued for ten minutes. But this fact has not been supported by any of the witness. P.W.6 is the servant of the informant and according to his evidence he has seen the actual firing but it has been argued that when the verbal altercation took place for about ten minutes then there is no reason as to why others in the vicinity who were present and later on become witness did not intervene to pacify the matter. So, it has been argued that this witness was also not a witness of the occurrence but later on he has become witness of the occurrence. 9. P.W.7 has deposed that his shop situates ten yards from the shop of Naresh Prasad Sah namely the informant. He has claimed identification of the accused in the light of electric bulb and torch but it has been pointed out that in the cross-examination he has stated that he reached the place of occurrence five minutes after hearing the sound of firing so, it has been argued that he is also not a witness of the occurrence. According to P.W.7 he has come to the place of occurrence after 8 five minutes of the occurrence. 10. The Investigating Officer has not been examined. The doctor has also not been examined. Though, it has come that they could not be examined due to circumstances which have been explained by the prosecution. The Investigating Officer has become invalid due to paralysis and the doctor was already died. But it has been emphatically argued that the post- mortem examination report which has been relied upon to assume the death of Naresh Prasad Sah was not proved in the manner as prescribed under Section 65 of the Evidence Act. The photocopy of the post-mortem examination report was proved by the clerk of the Advocate. This photocopy of the post-mortem examination is neither certified to be true copy of the post- mortem examination report nor it has been authenticated or attested by any competent authority of the hospital where the post-mortem was done. It has also been argued that even if this post-mortem report is considered then it appears that the prosecution has not been able to prove that the death was caused in the manner as alleged. No finding regarding use of weapon has been mentioned in the post-mortem 9 examination report. On this basis it has been argued that it is difficult to presume that the death was caused in the manner as alleged by the prosecution and on the basis of same presumptions order of conviction cannot be passed. 11. We have heard the submissions of the learned Counsel appearing on behalf of the appellant as well as the State. According to the initial version of the occurrence the injured was brought to the Balia Hospital immediately after the occurrence, but no paper was produced to show as to whether the injured was given even first treatment at Balia Hospital or there is nothing on the record that the injured was initially taken to Balia Hospital where he was treated. This is the vital link between the occurrence and subsequent death. Balia is the first place where the injured was taken but not even a chit of paper is present then it is difficult to assume that the injured was taken to Balia Hospital and not only that the death is not specified to be caused by the firearm rather it is due to septicemia. Even in the Xerox copy of the post-mortem examination report the cause of 10 death given is septicemia and the case of the prosecution is that the death was due to firearm injury. None of the treating doctors either of Balia or Patna Medical College Hospital, Patna (P.M.C.H.) has come to support that the injured/deceased had any firearm injury. The informant was fired upon and that firing has resulted into injury, then onus was upon the prosecution to prove the charge beyond the shadow of all reasonable doubts that injury as alleged has occurred due to firing of the accused alone. To prove the implication of the accused, the basic fact is that as to whether the injured received any firearm injury has also not been proved by the prosecution. Order of conviction cannot be based on the basis of presuppositions or presumptions rather it can only be based if the prosecution has been able to prove the charge beyond the shadow of all reasonable doubts that the occurrence has taken in the manner as alleged by the prosecution. Therefore, the onus was upon the prosecution to prove that the injured has received firearm injury or he was treated at different hospitals and that firearm injury has resulted into death. In view of the fact that these vital 11 links of causing any injury by firearm which resulted into death has not been proved at all. So, we are of the view that the prosecution has not been able to prove the charge against the appellant. 12. In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellant is acquitted of the charge and is discharged from the liability of his bail bonds. Patna High Court, Patna Dated 6th of January, 2011 kksinha/- (Shyam Kishore Sharma, J.) (Akhilesh Chandra, J.)