CRIMINAL APPEAL No.312 OF 1993 ********* Against the Judgment of conviction and sentence dated 18th September, 1993 passed by Sri Madhusudan Singh, 6th Additional Sessions Judge, Rohtas, Sasaram in S.T. No. 161 of 1988. ************* 1. Tribeni Chaudhary, son of Late Ram Ratan Chaudhary, 2. Sarju Chaudhary, son of late Ram Ratan Chaudhary, 3. Binod Chaudhary, son of Tribeni Chaudhary, all residents of village Makarain, P.S. - Dehri, District – Rohtas ---------Appellants Versus STATE OF BIHAR ------------- Respondent ******** For the Appellants : Mr. Ajit Kumar Singh, Advocate For the Respondent: Mr. Dashrath Mehta, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ********** Dharnidhar Jha, J. The present appeal arises out of the judgment of conviction and sentence passed by the 6th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 161 of 1988 passed on the 18th September, 1993 by which, while acquitting the three appellants of the offence under section 307 IPC, the learned Judge found appellants Tribeni Chaudhary and Binod Chaudhary guilty of committing offence under section 323 of the Indian Penal Code and directed each of them to suffer rigorous imprisonment for six months. The learned Judge held appellant no. 2, namely, Sarju Chaudhary guilty of committing offence under section 2 324 IPC and directed him to suffer rigorous imprisonment for one year. No sentence of fine was passed against any of the appellants. 2. The prosecution case, in short, as contained in Exht. 5, is that the informant was coming back to his house after tethering oxen at the residence of a particular person and when he had reached a particular place in between the house of one Radha Chaudhary and Butan Chaudhary, appeallant Sarju Chaudhary appeared with a scythe and dealt a blow with the instrument on the frontal part of his head. In the meantime, appellant Triveni Chaudhary and Binod Chaudhary also arrived there with bricks and lathi and both of them dealt blows with brick and lathi respectively on the nose and back of the informant. The informant ran for his life and fell down in that process. He cried out for help, upon which, Pramod Singh (not examined), Butan Dhobi (P.W. 1) and Kameshwar Chaudhary (P.W. 2) were attracted and the appellants started running away. The three above named witnesses brought the informant to the doctor, P.W. 5 for his treatment. 3. The motive for the occurrence was that the appellants had constructed some steps to go into their house by encroaching public land and by laying their claim over the land which was asked to remove by the informant and as such, the incident. 4. The defence is of innocence and false implication on the same count under which motive has been alleged. 5. The learned trial Judge did not believe any of the witnesses except P.W. 4, the informant and, if one could go through the findings recorded by the learned Judge in paragraph 14 of the judgment, then one could find that after having held witnesses not trustworthy on account of his evidence 3 suffering from serious infirmities and contradictions, the learned Judge went on to place reliance upon it and record a conviction. The learned Judge held : “that the unconsciousness of the informant introduced in the prosecution case is exaggeration and an effort of padding up, and ……………there is reasons appearing in the evidence of the witnesses and the record to come to such a conclusion” 6. Thereafter, the learned Judge went on to discuss the circumstances which could falsify the story of the informant going unconscious and as such not making a report and subsequently, making it after regaining his consciousness. The learned Judge went to such minutest details as to reading the injury report and holding that it was a very detailed and minute report which had considered all aspects of the matter and had the informant been unconscious, that fact must have been mentioned by the doctor in his report. Thus, the learned Judge, by implication, was pointing out that the evidence of P.W. 4, the informant, was embellished or was an after thought and, as such, I could, at the strength of the record made by the learned Trial Judge, record that the case suffered from the vice of creating facts so as to implicating innocent persons. 7. It was not that the learned Judge was not conscious of it. He was referring to the well known principle of criminal jurisprudence of falsus in uno falsus in omnibus, and was pointing out that the principle was not to be blindly followed in a criminal trial because, in our country, witnesses are prone to exaggeration and padding the story up which, however, remained to be proved. If there could be any doubt in the mind of the Judge that a witness is simply making an improvement and introducing false facts, specially on any important aspects of a criminal case, then the case 4 could not be said to be proved. The learned Judge has re-inforced his judgment with many decisions of the Supreme Court but after discussing the evidence, he appears not freely accepting the evidence as free from doubt. 8. Having regard to the discussion made above and having gone through materials on record and judgment of the Trial Judge, I find that the judgment of conviction and sentence is not properly passed. The charges had not been proved to the hilt, but the learned Judge still went on to convict the appellants. The appellants deserve to be acquitted. They are accordingly acquitted by setting aside the judgment and order of conviction. The appeal is allowed. 9. The three appellants are on bail. They are discharged from the liabilities of their bail bonds. (Dharnidhar Jha, J) Patna High Court Dated: The 18th February, 2009 NAFR/Anil/