Criminal Appeal (SJ) No.203 of 1999 Against the judgment and order of conviction dated 09. 08.1999 and order of sentence dated 10. 08. 1999, passed by Shri Alok Chandra Prasad, 10th Additional Sessions Judge, Saran, Chapra, in Sessions Trial No. 375 of 1988/160 of 1990. 1. Anil Kumar Singh, son of Satya Narayan Singh. 2. Ganesh Dayal Singh alias Ganesh Singh, son of Deo Kumar Singh. 3. Maharaj Singh, son of Deo Kumar Singh. 4. Vikash Kumar Singh, son of Maharaj Singh. 5. Kamta Singh, son of Deo Kumar Singh. 6. Binay Kumar Singh, son of Satya Narayan Singh. All are resident of Village- Maiki, Police Station- Garkha, District- Saran. .... .... Appellants. Versus The State off Bihar .... .... Respondent. For the Appellants : Mr. Udit Narayan Singh, Advocate. Mr. Rajiv Kumar, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, 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. The appellant no. 1 has been convicted for offence under Section 307 I.P.C. and has been sentenced to undergo rigorous imprisonment for ten years and other appellants have been convicted for offence under Section 2 379 I.P.C. and sentenced to undergo rigorous imprisonment for three years and further convicted for offence under Section 341 I.P.C. and have been sentenced to undergo rigorous imprisonment for one month. 3. The prosecution case as alleged in the Fardbeyan by the informant that on 30. 01. 1988, while the informant was going along with Rs. 5,000/- in connection with bringing bricks for contract work and reached near his orchard at Kheshra No. 239 then saw accused persons Maharaj Singh, Kamta Singh, Satya Narayan, Ganesh, Binay Kumar Singh, Anil Kumar, Pramod and Bikash were cutting his tree and loading it on a tier cart on which the informant protested then accused persons started abuse and on protest Maharaj Singh order to kill on which Pramod and Bikash catch hold of him and snatched his money worrh Rs. 5,000/- and Anil gave a Sabal blow on his head by which he fell down and in the meantime, Anandi, Bhola, Suresh, Chunnu Kumar and Jugal Pandit reached there and he got unconscious. He found himself in Patna at Kumar Nursing Home and then he learnt from his father that Suresh, Bhola and Anandi brought him Garkha Government hospital and there he 3 was referred to Patna. 4. However, occurrence is of 30. 01. 1988, but Fardbeyan of the informant Ramesh Kumar Singh was recorded on 20. 02. 1988 at Garkha P.S. on which the F.I.R. was lodged and investigation proceeded. The police after investigation submitted charge sheet and cognizance was taken. Case committed to the Court of Sessions and charge was framed for offence under Sections 307, 323, 379 and 341 I.P.C. and trial proceeded. 5. During trial 11 witnesses were examined as P.W. 1 Suresh Kumar Singh, P.W.2 Bhola Singh, P.W. 3 Yugal Pandit, P.W.4, Shashi Bhushan Gupta, P.W.5 Gorakh Nath Singh, P.W. 6 Harbansh Narain Singh, P.W. 7 Dr. K. P. Singh, P.W.7A Ramesh Kumar Singh, informant, P.W. 8, Alok Kumar Sinha, P.W. 9, Dinesh Kumar Singh, P.W. 10, Ranjit Kumar (x-ray technician). The documentary evidence adduced on behalf of the prosecution which are Ext. 1, Pathology Report, Ext. 2 Injury Report of the injured, Ext. 3, signature of the informant on Ext. 5 (Fardbeyan), Ext. 4, certified copy of sale deed executed by Dukhit Dusadh in favour of Tipan Singh, Ext. 6 forwarding letter of the Investigating Officer 4 to the Civil Surgeon, Ext. 7, the Injury Report, Ext. 8 and Ext. 8/1 are the x-ray plates, Ext. 9 is the x-ray report, Ext. 10 is the certified copy of the F.I.R. of the counter case, Ext. 11 is the certified copy of the judgment of the counter case. 6. The trial court taking into consideration the evidence of P.W. 1, 2, 3 and 8 are the witnesses of the occurrence whereas P.W. 4 is hearsay witness, P.W. 5 is formal witness, P.W. 6 formal witness, P.W.7 is the doctor, P.W.7A is the informant and P.W. 9 is the Investigating Officer hold that prosecution has been able to prove that informant suffer from grievous injury on head is dangerous to life and hold that prosecution has been able to explain the delay in lodging the F.I.R. as was under treatment and hence convicted the appellants. 7. Learned counsel for the appellants however, contends that occurrence is of 30. 01. 1988 and Fardbeyan is dated 20. 02. 1988, there is delay in lodging of the F.I.R. and the prosecution has not been able to explain the delay as neither paper regarding the treatment of the informant at Patna has been produced nor any evidence of the doctor has been brought on record to explain the delay. 5 It has further been contended that prosecution has not been able to prove that injury was grievous as neither doctor who referred for x-ray nor Radiologist who examined the informant has been examined to substantiate or corroborate the treatment of the informant, the x-ray plate and x-ray report does not show the x-ray plate is x- ray of informant and x-ray report formally proved is not a substantive evidence to be read in evidence. Further it has come in evidence that both parties are descendent of common ancestor and no document of partition has been brought to prove the partition. 8. Hence I proceed to consider the evidence in the light of submission as whether the prosecution has been able to prove the charge beyond reasonable doubt. 9. P.W. 1, 2 and 3 have supported the prosecution about occurrence. However, P.W. 1 who is resident of 42 kms away from the place of occurrence. However, stated that his shop in maika village since 1994 and P.W.3 is resident of district- Sitamarhi, but stated that he is servant. However they have come to say that Anil Singh gave Sabal (Khanti) blow on the head of Ramesh Kumar Singh (the informant) by which he got injured. 6 P.W. 4 is hearsay. P.W. 5 is formal witness, P.W. 6 is father of the informant. However, he is not eye witness to the occurrence and has stated that he learnt about the occurrence and stated that victim was in unconscious state and then he was taken to Garkha hospital where he was referred to P.M.C.H. and then he was taken to Patna for treatment. In his evidence has admitted the relationship between the parties as both are descendent of common ancestor and asserted that land was purchased in 1941 whereas partition took place in 1935. However there is no document of partition but there is some documents of partition and claimed that tree belong to him. 10. P.W. 7 is the doctor. He has stated that he examined the victim on 30. 01. 1988 and found the injury on the head to be depressed fracture on the left side of the parietal bone. He has stated that he examined the patient on police requisition, but he stated that police requisition in original or original injury report has not been placed before him. Hence no contemporaneous requisition by police nor the injury report given on police requisition dated 30. 01. 1988 has been produced or brought in evidence. The I.O. has stated that there is no requisition 7 dated 30. 01. 1988 and Ext. 7 injury report is dated 20.02.1988 in which it has been stated that he examined the patient on 30. 01. 1988, but no contemporaneous document dated 30. 01. 1988 has been produced. However having regard to the fact that P.W.7, Dr. K. R.P. Singh, though have stated that he examined the patient on police requisition, but there is no police requisition dated 30. 01. 1988, not any injury report dated 30. 01. 1988 nor any document to show that the informant was referred to P.M.C.H. by Garkha hospital has been brought on record. Neither there is any Sanha or even any F.I..R. has been recorded in Garkha P.S. on 30. 01. 1988 has been brought on record. Hence there is no contemporaneous document to suggest about reporting any matter on 30.01. 1988 nor there is any document to suggest that patient was examined on 30. 01. 1988 and Ext. 6 and 7 are both dated 20. 02. 1988, though, in Ext. 7 it is mentioned that he was examined on 30. 01. 1988. 11. P.W.7/A is the informant and he has come to support the prosecution case regarding occurrence dated 30. 01. 1988, but he has stated after the occurrence he got unconscious and he get his consciousness after two days 8 of the occurrence. He learnt from his father that he was brought to Government hospital Garkha and he was referred to Patna, but this part of evidence is hit by hearsay. There is no corresponding documentary evidence about the injury or about referring the informant to P.M.C.H. from Garkha hospital. It is further asserted that the informant was treated by the Neuro Surgeon, Dr. R. P. Choudhary at Nursing Home at Patna. But neither the doctor nor any document regarding his treatment at Nursing Home, Patna has been proved or brought on record. The informant stated in his evidence that he remained in Nursing Home from 30. 01. 1988 to 19. 02. 1988, but no document about his treatment at Nursing Home at Patna, has been brought on record nor any doctor of Nursing home has been examined regarding his treatment at Nursing Home at Patna have been proved. 12. However, P.W.10 is one Ranjit Kumar claimed to X-Ray Technician of Bhojpur X-Ray of Makhaniya Kuan, Patna. He has proved that two x-ray plate. He also formally proved x-ray report in writing of Dr. Dilip Kumar which has been marked as Ext. 9. However, in his evidence he has stated that name of 9 injured on x-ray plate has not been mentioned. On the date of taking x-ray how many x-ray was done is mentioned in the register and x-ray was done on the basis of the said register. However, the said register has not been brought in evidence and said register has not placed before him. He has further stated that he does not identify the injured since before. Having regard to the fact to his evidence that x-ray report does not mention the name of injured and x-ray register has not been proved or brought in evidence. This witness has stated he is not knowing the patient since before. Hence on the basis of his evidence it cannot be held that said x-ray plate are the x-ray plate with regard to x-ray of the informant. However, mere formal prove of the report is only prove that the said report is in writing of doctor but the content of the document cannot be treated as substantive evidence, it can be only be treated as corroborative evidence and unless the doctor come and depose about the content, the content cannot be used as evidence and hence is not admissible in evidence. The forthly of Section 60 of the Evidence Act provides that opinion of the doctor is the evidence of doctor in person who hold the opinion and mere formal prove of the 10 report has got no evidence value regarding content of the report. 13. Hence x-ray report is not admissible in evidence as the Radiologist has not been examined and hence it cannot be inferred on the basis of this document Ext. 8 and 9 as well as on the evidence of P.W. 10 that informant has got fracture on his head. Hence except oral evidence by P.W. 7/A (informant) and other witness P.W. 6 that they were treated by the doctor at Garkha Hospital and on requisition of the police the doctor referred the informant to Patna is not substantiated by any contemporaneous document to hold that the victim was referred to Patna. Nor there is any cogent, reliable and unimpeachable evidence that victim informant was treated at Patna except the evidence of the informant. Further regarding evidence that victim was treated at Private Nursing Home since 31. 08. 1988 to 20. 02. 1988, is not established by cogent, reliable and unimpeachable evidence and consequently delay in lodging the F.I.R. after twenty days of the occurrence on 20. 02. 1988 has not been properly explained. Three persons have been named as witnesses in the Fardbeyan of the informant 11 recorded on 20. 02. 1988. P.W. 6 is the father also claims that he learned about the occurrence on the date of occurrence and rushed to hospital where the victim was unconscious state, but no report was lodged in the Garkha Police nor any report lodged at Patna during his treatment from 30. 01. 1988 to 19. 02. 1988 and the doctor, P.W.7 in his evidence stated that he gave injury report on requisition but neither said report nor the requisition by police dated 30. 01. 1988 has been produced. P.W. 7 the doctor stated that original injury report is not before him cast a serious doubt about the prosecution case regarding injury and treatment at Patna in evidence that he has sent original injury report to the police, but the I.O. states there is nothing mention in record of P.S. and nothing has been produced to suggest the police requisition on 30. 01. 1988 or reported the matter on 30. 01. 1988. 14. Hence under the fact and circumstance the prosecution has not been able to establish that prosecution has been able to prove the charges levelled against the accused beyond reasonable doubt and in the circumstance the appellants are entitle to be benefit of doubt. Hence I find and hold that prosecution is not able to prove the 12 charge for offence under Section 307 I.P.C. 15. So far the charge with regard to theft is concerned, there is no evidence that both parties are descendent of common ancestor, though, appellants claimed that there was partition and land was purchased in the name of Tipan Singh, though sale deed was transferred in the year 1941, but there is nothing to suggest that there was partition in the family. 16. However it is true that appellants have neither claimed nor suggestion however from the evidence of the father of the informant it is apparent that both parties are descendent of common ancestor, though, land purchased in the name of Tipan Singh, but accused persons are descendent of the brother of Tipan Singh, though, prosecution party claim and there was partition, there was no document of partition, but there are some document, but no document brought to establish that the tree was exclusively belongs to the informant. Hence under the fact and circumstance the appellants are entitled to be benefit of doubt. 17. Hence I find and hold that prosecution has not been able to prove the charge beyond all reasonable 13 doubt and hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court. The 23rd December, 2011. NAFR/m.p. ( Gopal Prasad, J.)