CRIMINAL APPEAL No.160 OF 2003(D.B.) ---------- Against the judgment of conviction dated 18.02.2003 and the order of sentence dated 19.02.2003 passed by Sri Govind Chandrayan, learned Additional Sessions Judge IIIrd, Khagaria in Sessions Case No. 476 of 1989 arising out of Parbatta P.S. Case No. 139 of 1988. ---------- Ajay Singh, Son of Late Deoki Singh, resident of Village- Nayagaon, Satputti, P.S. Parbatta, District- Khagaria......................Appellant. Versus The State of Bihar............................................................Respondent. ---------- For the Appellant: Mr. B.P.Pandey, Sr. Advocate and M/S. Jagnnath Singh, S.C. Giri and P.K. Sinha, Advocates. For the Respondent: Ms. Shashi Bala Verma, A.P.P. ---------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE DINESH KUMAR SINGH ---------- D.K.Singh,J The present appeal has been preferred by the sole appellant, above-named, against the judgment of conviction dated 18.02.2003 and order of sentence dated 19.02.2003 passed by Sri Govind Chandrayan, learned Additional Sessions Judge IIIrd, Khagaria, in Sessions Case No. 476 of 1989, arising out of Parbatta P.S. Case No. 139 of 1988 whereby and whereunder the sole appellant was convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and also directed to pay a fine of Rs. 5,000/- and in default of making payment of fine the convict was sentenced to undergo rigorous imprisonment for two years. The 2 period already undergone by the convict in detention during trial was directed to be set off to the quantum of the sentence. 2. The prosecution case starts with the fardbeyan of Ram Sagar Singh recorded on 16.10.1988 at 12.00 P.M. at the door of the informant at village-Nayagaon, P.S. Parbatta, District- Khagaria recorded by S.I., Sri A. H. Khan, the Officer-in-charge of Parbatta Police Station to the effect that at 9.00 A.M. on 16.10.1988 when the informant was sitting with his deceased-brother, Ram Singh, at his door then from the southern side Ajay Singh (appellant)and Sanjay Singh armed with pistol, Bambam Singh armed with Lathi, Amarnath Singh armed with Farsa and from the western side Brahmadeo Singh, Ram Udagar Singh armed with Lathi, Ram Balak Singh armed with Bhala, Vijay Singh, Bulo Singh armed with pistol and Atardeo Singh armed with Farsa came and surrounded the informant and his brother. Vijay Singh ordered Ajay Singh(appellant) to fire from his pistol which hit on the right side of the mouth of Ram Singh as a result of which Ram Singh fell down and when the informant tried to save his 3 brother Ram Singh then Atardo Singh assaulted him with Farsa as a result of which after receiving injury, he fell down on the ground. Thereafter, Ram Udagar Singh and Bambam Singh assaulted with Lathi on the right leg of the informant, Bullo Singh assaulted him with the butt of pistol which hit at the right elbow of the informant. Thereafter, the informant raised alarm upon which the informant’s sons, namely, Arvind Singh(P.W.3) and Diwakar Singh(not examined), sons of the deceased, namely, Niranjan Singh(P.W.2)and Chitranjan Singh(not examined) and the co-villager Shambhu Prasad Singh(P.W.5) came and saw the occurrence. 3. On the basis of the aforesaid fardbeyan, Parbatta P.S. case No. 139 of 1988 was registered on 16.10.1988 under Sections 147, 148, 149, 342, 323, 307 and 302 of the Indian Penal Code as well as Section 27 of the Arms Act. 4. After completion of the investigation, the investigating agency submitted charge sheet under Section 302/34 and 323 of the Indian Penal Code as well as under Section 27 of the Arms Act. 4 Consequently, the cognizance was taken, the case was committed to the court of sessions and charges were framed against all the accused persons under Sections 302/149 of the Indian Penal Code. The appellant was further charged under Section 302 of the Indian Penal Code whereas against Atardeo Singh charge under Section 324 I.P.C. was framed. Brahamdeo singh, Bullo Singh and Ram Udagar Singh were charged under Section 323 of the Indian Penal Code. The accused persons pleaded not guilty. Altogether ten accused persons were put on trial. 5. The prosecution in order to substantiate the charges, examined nine witnesses, namely, P.W.1 Shailesh Kumar Singh, P.W. 2 Niranjan Singh, P.W. 3 Arvind Singh, P.W. 4 Sanjeev Kumar Singh, P.W. 5 Shambhu Prasad Singh, P.W. 6 Sudhir Soren, P.W. 7(S.I.) Ajay Kumar Chaurasia, who only submitted chargesheet in the case and also proved paragraph no. 8 of the case diary in which description of place of occurrence has been given as he took charge of investigation at the fag end of investigation. P.W. 8 Dr. 5 Ashok Kumar Jain, held post mortem examination on the dead body of the deceased. Out of 9 P. Ws. 4 and 5 were declared hostile as they did not support the prosecution case whereas P.W. 6 is a formal witness and P.W. 1 is a hear-say witness. 6. The prosecution has produced seven documentary evidences of which Exhibit-1 and Exhibit-1/1 are the signatures of Niranjan Singh and Shambhu Prasad Singh on the inquest report. Exhibit-2 is the fardbeyan. Exhibit-3 is the formal F.I.R.Exhibit-4 is the seizure list. Exhibit-5 is inquest report. Exhibit- 6 is the para 8 of the case diary and Exhibit-7 is the post mortem report which has been proved by the doctor himself. The defence has not examined any witness. 7. The learned Sessions Judge after considering the oral and documentary evidences has come to the conclusion that the informant (P.W.9) has not supported the prosecution case as he could not identify any accused persons nor could see as to who assaulted him and his deceased brother rather he only saw the dead body of his brother 6 after receiving injury on the head. The informant has also denied the presence of the sole appellant as well as Sanjay Singh and Bambam Singh at the place of occurrence. Since the other accused persons were not alleged to have assaulted the deceased hence this is one of the grounds for acquittal of the other accused persons except the present appellant. So far as other grounds for acquittal of other accused are concerned the evidences of P. Ws. with regard to allegation of assault on the informant was found to be contradictory by learned Trial court, as P.W.2 attributed the assault on the informant to Atardeo Singh, Amarnath Singh and Ram Balak Singh whereas P.W. 3 attributed the said assault only to Atardeo Singh. Other P. Ws. had not attributed any overt act against the rest of the accused persons. Moreover, learned trial court found that P.W. 7 had stated that the Deputy Superintendent of Police in his supervision note had stated that the other persons were implicated due to previous enmity. But so far as Ajay Singh, the present appellant, is concerned, the trial court found that the testimony of the 7 doctor proved the prosecution case as the doctor had opined the cause of death of Ram Singh by fire arm injuries. Hence, the injury corroborates the prosecution version and accordingly, only Ajay Singh, the present appellant, was convicted and sentence was awarded. 8. Heard learned senior counsel Mr. B. P. Pandey for the appellant and Ms. Shashi Bala Verma A.P.P.on behalf of the State of Bihar. The learned senior counsel for the appellant Mr. B. P. Pandey vehemently argued that both sides are agnates. There was serious land dispute between them. Hence, the chance of false implication is very high. Moreover the conviction is based on the evidence of P.W.2 and P.W. 3 who have not seen the occurrence. Besides, their evidences are contradictory and above all the informant has not supported the prosecution case. Hence prosecution has miserably failed to prove the charges beyond all reasonable doubts. The learned A.P.P. has submitted that the fire arm injury in the post mortem examination report clearly proved the prosecution case. Hence the prosecution 8 proved the case beyond reasonable doubts and the judgment and order of conviction need no interference. The death of Ram Singh by fire arm injuries at his door is admitted. Hence, the place of occurrence and death of Ram Singh by fire arm injury is not in dispute. Now the only question remains to be determined is as to who caused the fatal fire arm injury to deceased Ram Singh. While going through the evidence on record, I find that nine prosecution witnesses have been examined of which P.W.1 saw accused Sanjay Singh, Bambam Singh and the appellant armed with pistol going towards the place of occurrence. Subsequently, on hearing the noise P.W.1 went at the door of deceased Ram Singh and found him dead but has not seen the actual occurrence. Hence his evidence does not help in fixing the charge of assault. P.W.2, the son of the deceased, has stated that Ajay Singh made firing at the deceased and others assaulted the informant. But, if the son of the deceased was present at the place of occurrence then P.W. 2 would 9 have been the best person to inform the police immediately. Moreover, the informant in his fardbeyan has clearly stated that P. Ws. 2 and 3 came after the assault when the informant raised alarm. Hence as per the informant’s version in the fardbeyan P.W.2’s presence at the place of occurrence, when the actual assault took place, becomes doubtful. Moreover, the informant in his deposition has not admitted the presence of P.W.2 at the place of occurrence. P.W.2’s evidence has also been disbelieved by the learned trial court with regard to other accused. Hence, the conviction can not be based on the evidence of P.W. 2. So far as P.W. 3 is concerned, he is the son of the informant. In examination-in- chief, though he has claimed to have seen the occurrence, but in cross-examination he has admitted that he was far away from the place of occurrence when he heard the sound of gun shot firing, then he came to the place of occurrence and it took him half an hour to reach his house which is the place of occurrence and then upon hearing the cry of some women, P.W. 3 went inside the house 10 where he found his uncle Ram Singh’s dead body. P.W.3 has specifically admitted in paragraph no.3 of his evidence that he did not see any one assaulting in following words: ”Mar-pit karane wale ko main nahi dekha hun.” Hence, admittedly P.W. 3 has not seen the occurrence. P.W. 3, admittedly the only eye witness to the occurrence, has not supported the prosecution case. P.W. 4, Sanjeev Kumar Singh, has not supported the prosecution case as he has deposed that on hearing about the occurrence he went to the house of the deceased and found him dead. P.W.4 has been declared hostile. P.W. 5 has also not supported the prosecution case as he has deposed that he was in his house and on hearing some hulla, he came out of his house and learnt that some one had died. P. W.5 has also been declared hostile. P.W. 6 Sudhir Soren is the formal witness who has proved the handwriting of the then officer-in-charge, Parbatta Police Station on the fardbeyan which writing has been marked Exhibit-2 and also proved the 11 hand writing and signature of the then officer-in-charge on formal F.I.R. P.W.7 is Ajay Kumar Chaurasia, Sub Inspector of Police of Parbatta Police Station, who has submitted chargesheet in the case and also proved paragraph no. 8 of case diary as he took the investigation at its fag end. P.W. 8 is the doctor who found two ante mortem injuries which are as follows:- I. One lacerated wound with inverted margin 3cm x 2cm x 1cm over right side lower lip surrounding skin was blackened. It was wound of entry. II. One bruise below right ear 3Cm X 2Cm. On dissection there was extra vegation of blood in the subcutaneous tissues in association with the injury mentioned above. Though the injury no.1 is said to have been caused by fire arm as bullet was found lodged in the right temporal area of the brain, but injury no.2 was caused by hard and blunt object but this injury has not been explained by the prosecution. The ocular evidences do not prove as to who caused the fire arm injury to deceased. Hence the mere 12 opinion of the doctor of finding one fire arm injury, during post mortem examination can not be the basis of conviction. P.W. 9 is the informant and has clearly stated that he has not seen as to who made assault upon Ram Singh or to him. Moreover, he has also admitted that the appellant, Sanjay Singh and Bambam Singh were not present at the place of occurrence. Since the informant P.W. 9 has not been declared hostile hence his evidence can not be discarded thoroughly. The injury reports of other injured including the injury report of informant has not been brought on record which makes the prosecution case more doubtful. 9. The learned A. P. P. though has relied upon the evidence of doctor who found the fire arm injury during post mortem examination but, the submission of the learned A.P.P. is fit to be rejected on the discussions made in the preceding paragraphs. 10. Taking into account the entire evidences, particularly the evidence of P.W.9, the informant, the only eye witness not supporting the prosecution case, I hold 13 that the prosecution has miserably failed to prove the charges against the sole appellant Ajay Singh, beyond reasonable doubt. Hence, this appeal is allowed and the judgment of conviction is set aside. The appellant, Ajay Singh is acquitted of the charges. He is in custody. He is directed to be released forthwith, if not otherwise required in any other case or cases. (Dinesh Kumar Singh,J) Dharnidhar Jha,J I agree. (Dharnidhar Jha,J) Patna High Court, Patna The 8th April, 2010. U.K./N.A.F.R.