CRIMINAL APPEAL (S.J.) NO. 259 OF 1993 *** Against the judgment dated 28.08.1993 and order dated 31.08.1993 passed in Sessions Trial No. 169 of 1987 by the 3rd Additional Sessions Judge, Vaishali at Hajipur. *** Abinash Singh . . . . . . . . . . . . . . . . . . . . . Appellant. Versus The State of Bihar . . . . . . . . . . . . . . . . . . . Respondent. For the Appellant : Mr. Satish Kumar Sinha, Mr. Ajay Kumar Singh, Mr. Narendra Pd. Singh, Advocates For the State : Mr. Nand Kishore Prasad, A.P.P. *** P R E S E N T HON’BLE MR. JUSTICE SYED MD. MAHFOOZ ALAM S.M.M.ALAM, J. This Criminal Appeal has been preferred by sole appellant Abinash Singh, who has been convicted under section 308 of the Indian Penal Code (hereinafter will be called as I.P.C.) and 27 of the Arms Act by judgment dated 28.08.1993 and order dated 31.08.1993 respectively passed by Shri Mithilesh Kumar Singh, 3rd Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 169 of 1987 and by the impugned judgment and order appellant was sentenced to undergo Rigorous Imprisonment for four years each under section 308 of the I.P.C. and section 27 of the Arms Act with fine of Rs. 3,000/- each and in default of payment of fine further Rigorous Imprisonment for two years each. Being aggrieved by and dissatisfied with the said judgment and order the sole appellant has preferred this appeal. 2. The prosecution case in brief is that on 02.04.1983 at 6.00 P.M. P.W.3 Munehwar Singh (Bhuneshwar Singh) was feeding his cattle at his Bathan. P.W.1 Prem Kumar Singh, the mother of Muneshwar Singh alongwith one Anirudh Singh were also present there, in the mean time appellant Abinash Singh came there with a 2 country made pistol and started abusing Anirudh Singh whereupon some altercation took place between Anirudh Singh and the appellant. During altercation the appellant lost his temper and aimed the pistol at Anirudh Singh whereupon Muneshwar Singh tried to intervene between them but the appellant opened fire from the pistol aiming at Anirudh Singh who sat down and the bullet hit the abdomen of Muneshwar Singh, Muneshwar Singh (P.W.3) fell down, then the appellant fled away saying that this time Anirudh Singh was saved but he would teach him lesson later on. On hulla several persons of village collected, who saw the occurrence and chased the appellant who managed to escape. Due to gun shot injury Muneshwar Singh became unconscious and was brought to P.M.C.H. In the mean time A.S.I. S.N. Singh of Bidupur police station arrived at the place of occurrence village and recorded the Fardbeyan of Anirudh Singh in the said village at about 7.00 P.M. on 02.04.1983, on the basis of which Bidupur P.S. case no. 46 of 1983 dated 02.04.1983 under section 307, 324 of I.P.C. and 27 of the Arms Act was instituted against the appellant. It further transpires that at P.M.C.H. another Fardbeyan of Bhuneshwar Singh (Muneshwar Singh) was recorded by A.S.I. J.N. Singh of Pirbahore police station. The police after investigation of the case, submitted charge sheet against the appellant under section 307 of I.P.C. and 27 of the Arms Act, on the basis of which cognizance was taken and the appellant was committed to the Court of Sessions. Thereafter on 13.09.1991 charge under section 307 of I.P.C. and 27 of the Arms Act was framed against the appellant by 3rd Additional Sessions Judge, Vaishali at Hajipur, the appellant pleaded not guilty and then he was put on trial and by the impugned judgment the appellant was convicted. 3. From perusal of the Lower Court Record as well as the judgment of the trial court it appears that in this case the prosecution has examined only three witnesses namely Prem Kumar Singh (P.W.1), Ranjeet Singh (P.W.2) and Bhuneshwar Singh (P.W.3). It further transpires that the learned trial court has not 3 placed reliance upon the evidence of P.W.2 and according to the learned Additional Sessions Judge P.W.2 is not a wholly reliable witness. However, the learned Additional Sessions Judge placed reliance upon the testimony of P.W.1 and P.w.3 and convicted the appellant. 4. It has been submitted by the learned advocate of the appellant that the judgment of the trial Court suffers from several infirmities and in presence of so many infirmities the conviction of the appellant cannot be sustained. His first contention is that the prosecution has not brought the F.I.R. lodged by Anirudh Singh on record and the Fardbeyan which was proved by P.W.3 and attributed to him cannot be legally held to be an F.I.R. and it can only be treated as statement recorded by the police under section 161 of Cr.P.C. during investigation. He submitted that since the Fardbeyan of Anirudh Singh, which was the basis of this case and on that basis this case was instituted has not been brought on record, as such the court below should have held that there was no prosecution case on record which the prosecution wanted to substantiate and so on this score alone the appellant should have been acquitted. The learned advocate has further submitted that in this case neither the injury report of injured (P.W.3 Bhuneshwar Singh) was brought on record nor any doctor was examined to establish this fact that actually P.W.3 had sustained fire arm injury. He submitted that in absence of injury report and the evidence of the doctor it cannot be held that P.W.3 had actually received fire arm injury on his person caused by this appellant. He further submitted that the prosecution has also not examined the investigating officer of this case due to which the appellant has been highly prejudiced and the place of occurrence could not be established. On the basis of above submission the learned advocate of the appellant argued that the judgment of the trial court is bad in law and is liable to be set aside. 5. From perusal of the Lower Court Record it appears that the Fardbeyan of Anirudh Singh on the basis of which this case bearing Bidupur P.S. case no. 86 of 4 1983 was instituted is attached with the record but strangely enough the said fardbeyan which was the basis of this case and on which basis F.I.R. of Bidupur P.S. case no. 46 of 1983 was drawn was not brought on record even by proving the same from a formal witness. The subsequent fardbeyan of Muneshwar Singh which the learned court below has mentioned as the fardbeyan of the informant cannot be treated as fardbeyan and at best it can be treated as statement under section 161 Cr.P.C. recorded during the course of investigation. So the fardbeyan of Muneshwar Singh which has been marked Ext.1 is not the basis of case on which this case was instituted. I am of the view that due to none bringing of the F.I.R. lodged by Anirudh Singh on record the prosecution has failed to bring its case on record which the prosecution wanted to substantiate and as such the same is fatal to the case of the prosecution. 6. It further transpires from the record that the prosecution has neither brought the injury report of injured Muneshwar Singh on record nor it has examined the doctor, who had examined the injury of P.W.3 Muneshwar Singh. I am of the view that due to non-examination of the doctor and in absence of injury report of P.W.3 Muneshwar Singh it cannot be held that on the alleged date of occurrence P.W.3 had received fire arms injury at the hands of this appellant. Mainly because of the fact that P.W.3 had shown some mark of injury to the learned trial court it cannot be held that the said injury was caused by fire arms and therefore, I am of the view that the non-examination of the doctor and none bringing of injury report on record is fatal to the case of the prosecution. 7. It further transpires that even the investigating officer who has conducted investigation and who had inspected the place of occurrence was not examined by the prosecution. The submission of the learned advocate of the appellant was that due to non-examination of the investigating officer the place of occurrence could not be proved and the appellant has been highly prejudiced. So far 5 the argument of the learned advocate of the appellant that due to non-examination of investigating officer the place of occurrence could not be proved. I am of the view that this argument is not acceptable as when direct evidence with regard to the place of occurrence remains available then in that case only due to non-examination of the Investigating Officer it is not proper to hold that the prosecution has failed to prove the place of occurrence of the case. I am of the view that even in the absence of the examination of the Investigating Officer the place of occurrence can be established by the evidence of the other witnesses. However, so far the argument of the learned advocate of the appellant that due to non-examination of the Investigating Officer the appellant has been prejudiced is concerned, I am of the view that the same is acceptable in view of the fact that due to non-examination of the Investigating Officer neither the fardbeyan of Anirudh Singh nor the formal F.I.R. of this case could be brought on record. Moreover, the appellant could not be able to bring contradiction in the evidence of the prosecution witnesses on record due to non- examination of the investigating officer and therefore I am of the view that due to non-examination of the investigating officer the appellant has been highly prejudiced. As regards the merit of the case I find that the learned trial court has disbelieved the evidence of P.W.2 but has believed the evidence of P.W.1 and P.W.3 I find from the cross-examination of both the witnesses that both the witnesses are closely related to each other and so it cannot be held that they are independent witnesses 8. It further transpires that P.W.3 who is injured in this case, is not a man of clean antecedent as in para.5 of his cross-examination he has admitted that he was accused in a criminal case which was instituted for entering into the house of Ram Sagar Singh in night hour with intention to commit sexual act with the wife of Ram Sagar Singh. Although he volunteer that the said case was falsely instituted against him the statement of the P.W.3 made in pra.5 of his deposition shows that he 6 is not a man of clean antecedent and as such he cannot be held to be wholly reliable witness and in view of so many infirmities in the prosecution case as pointed by me in the above mentioned paragraph the evidence of P.W.3 cannot be relied upon. 9. In the result, I find merit in this appeal and as such the same is hereby allowed and the conviction and sentence passed against the appellant are hereby set aside. The appellant is acquitted of the charge of section 308 of I.P.C. and 27 of the Arms Act. Appellant is on bail, as such he is discharged from the liabilities of his bail bonds. (Syed Md. Mahfooz Alam, J.) Patna High Court Patna. The 11th July, 2008. N.A.F.R./Uday/