Criminal Appeal (SJ) No.245 of 1998 Against the judgment and order of conviction and sentence dated 22. 05. 1998, passed by Shri Jitendra Kumar Sinha, Additional Sessions Judge 2nd, Munger, in Sessions Case No. 167 of 1986. 1. Anup Mandal, son of Jamuna Mandal. 2. Ajit Mandal, son of Munilal Mandal. 3. Basuki Mandal, son of Biranchi Mandal. 4. Satish Mandal, son of Dhurender Mandal. All residents of Village- Chandanpura, P.S. Muffasil, District- Munger. .... .... Appellants Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Sanjeev Rajan, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Appellants Basuki Mandal and Satish Mandal have been convicted for offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years and further convicted under Section 323 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellant Ajit Mandal has been convicted for offence under Section 323/34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for nine months and appellant 2 Anup Mandal has been convicted under Section 379 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. 3. The prosecution case as alleged in the Fardbeyan of the informant Shashi Bhushan Mandal that while the informant P.W. 3 was returning from the Ashikpur Bazar to his village, then Basuki Mandal, Ajit Mandal, Anup Mandal and Satish Mandal were standing near the house of Ramanand Mandal. Then Basuki Mandal and Satish Mandal took out their pistol and fired causing injury on left arm and chest of informant by which he fell down, then Anup Mandal took away Rs. 1200/- from his pocket. However, in the meantime Ratan Kumar Singh, Kapildeo Mandal, Kalu Singh, Manoj Kumar Singh and Gurudutt Mandal came to the place of occurrence saw the occurrence and on seeing these persons the accused persons flee away. 4. On the basis Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted. Cognizance taken and case committed to the Court of Sessions where the charge was framed. 5. During trial five witnesses were examined. 3 P.W. 1 Kapildeo Mandal, P.W. 2 Ratan Kumar Singh, P.W. 3 Shashi Bhushan Mandal, P.W. 4 Surendra Das, the formal witness who has proved Ext. 2 and P.W. 5 is the I.O. On considering the evidence of witnesses who supported the prosecution case the trial court convicted the appellants and sentenced as mentioned above. 6. Learned counsel for the appellants contends that there is delay for two days in lodging the F.I.R. and doctor has not been examined to prove the injury and evidence of witnesses is not worthy of reliance as the informant has stated he come alone and after occurrence P.W. 1 and 2 came to the place of occurrence and hence evidence of P.W. 1 and 2 regarding occurrence is not reliable and further only interested and inimical witnesses come to support the prosecution case and no independent witness has been examined in this case. Hence prosecution has not been able to prove the charges. 7. Learned counsel for the State however submits that witnesses have supported the prosecution case on the material part of the prosecution story and hence evidence is worthy of confidence. 8. However, the prosecution case is that 4 informant, P.W.3, has stated that occurrence took place when he was coming from Bazar and after occurrence he made cry and he received injury by pistol firing by Satish and Basuki and then witnesses Ratan Kumar Singh (P.W.2), Kapildeo Mandal (P.W.1) and Gurudutt Mandal (not examined) came and saw the occurrence. Thereafter, the constable posted at Ram Nagar Phari came and the informant was taken to Railway hospital, Jamalpur. In his evidence, he has also stated that Satish Mandal fired which hit his left arm and then he became unconscious. However, he has further stated that Basuki Mandal fired which hit on his chest and he fell down and thereafter, Anup Mandal took out Rs.1200/- from his pocket. He has further stated Ratan Kumar, Rudal Mandal came there and took his to Railway hospital. His statement was recorded in hospital on 20. 02. 1985. In his cross-examination, he has stated that Manoj Kumar Singh, Gurudutt Mandal and Ratan Kumar Singh came to the place of occurrence after the occurrence. 9. However, P.W. 1, Kapildeo Mandal has stated that he was coming his home along with his brother Shashi Bhushan Mandal. Thereafter, he has stated that on 5 hulla and sound of fire he went to the place of occurrence and then saw accused Basuki and Satish and saw Shashi Bhushan was lying and has injured and Anup Mandal put his hand in the pocket and on enquiry Shashi disclosed that he has taken out money. In cross-examination he has stated that he has seen Anup Mandal taking out the money, but he has not stated to the Police about taking out money by Anup Mandal and it is not correct that he stated to the Police. Hence evidence of P.W.1 that he saw the occurrence of firing does not inspire confidence in view of evidence of P.W. 3, that he came to the P.O. after the occurrence and hence firing upon injured not established by P.W.1. 10. P.W. 2, though, has stated that he came to the P.O. after hearing sound of firing and saw Basuki and Satish armed with fire arm and Shashi Bhushan Mandal falling with firm arm injury. Anup Mandal put in his hand in the pocket of the informant. However, his evidence stands falsified as per evidence of P.W.1 who has deposed in cross-examination that he had not stated to Police and moreover, not any eye witness to see the firing. Hence the evidence produce that informant was unconscious in 6 the hospital and there is no explanation of delay in lodging the F.I.R. after two day. It is stated that victim was conscious and the informant stated that after his injury on left arm he became unconscious as per his evidence in examination-in-chief, he is unable to say who take the money and who resorted to subsequent firing whereas informant want to take advantage with explanation that he was unconscious so got consciousness after two days to explain delay in lodging the F.I.R. cannot take advantage simultaneously that he was conscious to speak about the occurrence and to see the witnesses came to rescue and he disclose about the occurrence. 11. The I.O. in his evidence stated that he had not find any sign of firing on the person neither he found any empty cartridge nor any sign of firing at P.O. and hence having regard to the allegation of firing no evidence found at P.O. The injury report has also not proved by the medical evidence nor the doctor examined to substantiate the occurrence. The evidence of P.W. 1 and 2 are found contradicting. P.W. 1 states that he was coming along with informant, P.W.3. P.W. 3 in his evidence has stated he was coming alone and after occurrence on hulla witnesses 7 came whereas P.W. 1 in his evidence stated that he was coming along with the informant and P.W. 2 himself stated he came after the firing, though, he has stated that he saw Anup put his hand in the pocket of Shashi Bhushan, but P.W.1 in his cross-examination admitted that he has not stated the fact before the Police, establish the development of the prosecution story. 12. However, P.W. 1 is the brother of the informant examined but and independent witnesses Manoj Kumar singh, Gurudutt Mandal who are charge sheeted witnesses have not been examined in his case and are withheld by prosecution. 13. Hence taking into consideration the entire evidence, the appellants are entitled for benefit of doubt as ocular evidence not corroborated by medical evidence as injury report has not been proved nor any satisfactory explanation of delay in lodging the F. I.R. and witnesses are variance and there is contradiction in the evidence of the witnesses about their presence at the place of occurrence and about the occurrence and I.O. has not found the sign of firing at P.O. 14. Hence, I find and hold that prosecution has 8 not been able to prove the charges beyond all reasonable doubt and hence order of conviction and sentence recorded by the lower court is hereby set aside and appeal is allowed. Patna High Court. The 12th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)