Criminal Appeal (SJ) No. 110 of 1998 ****** Against the judgment of conviction and order of sentence dated 24th March, 1998 passed by Shri Shatrughan Singh, Rampuri, learned 2nd Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 43 of 1983. ****** Gopal Sharan Singh, Son of Late Kunj Bihari Singh, resident of village – Ismailpur, P.S. – Hajipur Sadar, District – Vaishali. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. With Criminal Appeal (SJ) No. 113 of 1998 ****** 1. Jitendra Singh, Son of Late Ram Prayag Singh. 2. Ram Bhuwan Singh, Son of Late Sheo Baran Singh. Both of village – Murgiya Chak, P.S. – Hajipur Sadar, District – Vaishali. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. With Criminal Appeal (SJ) No. 147 of 1998 ****** 1. Nagina Rai, Son of Jadu Nandan Rai. 2. Babu Lal Rai, Son of Nathuni Rai. Both resident of village – Sahjadpur. 3. Balram Singh. 4. Sitaram Singh. Both sons of Ram Deo Singh. 5. Lalan Singh, S/O. Ram Prayag Singh, of village – Murliyachak. 6. Ramanand Thakur, S/O. Ram Sabad Thakur. 7. Mahesh Thakur, S/O. Kailash Thakur. Appellants nos. 3, 4 and 6, 7 of village – Ismailpur. All of P.S. – Sadar Hajipur, District – Vaishali. .... .... Appellants. 2 Versus The State Of Bihar .... .... Respondent. ****** For the Appellant/s : Sri Gopal Shankar, Advocate. Sri Anirudh Kumar Sinha, Advocate. For the Respondents : Sri Parmeshwar Mehta, A.P.P. For the Informant : Sri Mahesh Prasad, Advocate. Sri Rajeev Kumar, Advocate. P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants, informant and the State. 2. The appellant, namely, Gopal Sharan Singh in Cr. Appeal No. 110 of 1998 has been convicted for the offence under Section 307 and 109 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and has further been convicted under Section 148 of the Indian Penal Code but no separate sentence has been awarded. Appellant, Jitendra Singh and Ram Bhuwan Singh in Cr. Appeal No. 113 of 1998 have been convicted for the offence under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and have further been convicted under Section 148 of the Indian Penal Code but no separate sentence and rest of the seven appellants in Cr. Appeal No. 147 of 1998 have been convicted for the offence under Section 148 of the Indian Penal Code and have been ordered to be released on furnishing bond. 3 3. However, these three appeals are being heard together and disposed of by the common order and judgment as the three appeals arise out of the common judgment and order. 4. Learned counsel for the appellants, however, contended that Ram Bhuwan Singh the appellant of Cr. Appeal No. 113 of 1998 has died and Babu Lal Rai and Ramanand Thakur the appellant in Cr. Appeal No. 147 of 1998 have already died and hence the appeal against them abated. 5. The prosecution case as alleged in the fardbeyan of the informant Berasi Singh is that while they were harvesting wheat crop then the accused protested the harvesting claiming the land and assaulted. It is alleged that Gopal Sharan Singh along with accused persons forming an unlawful assembly came armed with gun and Ram Bhuwan Singh and Jitendra Singh armed with country made pistol and on the command of Gopal Sharan Singh, Ram Bhuwan Singh and Jitendra Singh fired causing injury to the informant and Ram Ishwar Singh and they got injured and the accused persons fled away and then the injured were taken to hospital. 6. However, the occurrence is alleged to have taken place on 04.04.1979 whereas the fardbeyan has been recorded on 06.04.1979 at 11:00 A.M. at the hospital and thereafter on the fardbeyan, First Information Report was lodged on 06.04.1979 and after investigation, 4 charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions and after commitment the charge was framed under Section 307 of the Indian Penal Code and under Section 307 and 109 of the Indian Penal Code against Gopal Sharan Singh. However, it is pertinent to mention that after investigation the final form was submitted against Gopal Sharan Singh which was accepted but during the trial summon was issued to Gopal Sharan Singh under Section 319 of the Cr.P.C. On his appearance the charge was framed against Gopal Sharan Singh under Section 307 and 109 of the Indian Penal Code. 7. However, during the trial seven witnesses were examined on behalf of the prosecution apart from the documentary evidence adduced and one witness was examined on behalf of the defence. The trial court after considering the oral and documentary evidence convicted and sentenced the appellants, taking into consideration the evidence of the witnesses 1 to 5 claiming to be the eye witness of the occurrence and further taking into consideration the material from the case diary that the delay has been explained. However, even though the doctor and the I.O. have not been examined in this case, the order of conviction and sentence recorded. 8. Learned counsel for the appellants, however, contended that there was material contradiction in the evidence of the witnesses 5 examined. The doctor and the I.O. have not been examined by the prosecution and the injury report has formally been proved and hence the non-examination of the doctor and the I.O. has substantially prejudiced the accused and the prosecution has not been able to prove the charges beyond reasonable doubt. 9. Learned counsel for the informant, however, submits that five witnesses were examined on behalf of the prosecution and they have deposed and supported the prosecution case and the injury report has formally been proved and brought on record and hence it can well be inferred that the prosecution has proved the case. 10. I proceed to take into consideration the evidence and in the light of the submissions made by the parties. The prosecution case is that the accused persons came and then on the command of Gopal Sharan Singh who himself was armed with a gun, the accused Jitendra Singh and Ram Bhuwan Singh fired causing injury to the prosecution. 11. P.Ws. 1 and 2 who are injured and they have come to support the prosecution case and in their evidence in cross examination and in chief they have supported the prosecution case as mentioned in the fardbeyan about the abetment and fired causing injury. However, there is delay in lodging the First Information Report. The First Information Report was lodge after two days. The witnesses have stated in his evidence that the accused persons also claiming the land. P.Ws. 2, 3 and 6 4 though have supported the prosecution case. However, their attentions have been drawn with regard to their earlier statement before the police and they have denied but the I.O. has not been examined to take the contradictions have caused prejudice to the appellants. P.Ws. 6 and 7 are only formal witness. P.Ws. 1 and 2 have come to support the prosecution case and they have stated that on the command of Gopal Sharan Singh accused Jitendra Singh and Ram Bhuwan Singh fired causing injury to them. However, the injury report has formally been proved. 12. The injury report formally proved is not admissible in evidence as hit by Section 60 (IV) of the Evidence Act and is a worst form of hearsay evidence which cannot be relied upon. The court ought not to rely on the report of doctor who has not been examined. The doctor is required to be summoned. Hence the injury report Exts. 2 and 2/1 without the examination of doctor cannot be considered. In the absence of injury report the ocular evidence is not corroborated by the medical evidence nor can it infer that injury was dangerous to life and was inflicted with intention to kill. 13. The occurrence took place on 04.04.1979 at 9-10 A.M. whereas the fardbeyan recorded on 06.04.1979 at 11:00 A.M. and there is delay of two days in lodging the First Information Report and P.W. 6 of his deposition has stated that his statement was recorded after one day as he 7 was unconscious. Injury nos. 2 and 3 found simple and there is no mention that the informant was unconscious. Hence, the explanation given for delay is found contradictory to the statement of P.W. 1. The statement recorded after two days and injury does not mention that he was conscious. The doctor has not been examined to prove that he was unconscious. The I.O. has also not been examined to prove that why the delay in lodging the First Information Report. Hence, taking into consideration the entire facts and circumstances, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt and hence the order of conviction and sentence recorded by the lower court is set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 9th August, 2011. N.A.F.R./Kundan.