Criminal Appeal (SJ) No.2 of 1996 Against the judgment dated 14. 12. 1995 and order of sentence dated 15. 12. 1995 passed by Shri Manohar Prasad, 6th Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 90 of 1987/88 of 1988. 1. Ram Lal Singh, son of Late Janki Singh. 2. Pramod Singh alias Chutus Singh, Son of Ram Lal Singh, both residents of Village- Nasrat Khani, Police Station- Nath Nagar, District- Bhagalpur. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. : For the Appellants : Mr. Rama Kant Sharma, Sr. Advocate. Mr. Rajesh Kumar, Advocate. Mr. Arun Kumar Pandey, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted under Section 307/34 of the Indian Penal Code. Appellant No. 1, Ram Lal Singh has been sentenced to undergo rigorous imprisonment for five years and Appellant No. 2 Pramod Singh alias Chutus singh has been sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case as alleged by the 2 informant Bhudeo Prasad Yadav that he heard the sound of cry and then family members ran there and saw his nephew Sunil Yadav fallen injured state. He disclosed that Ram Lal Singh and Pramod Singh have assaulted by Hasua and Pathria. Thereafter, he got unconscious till today of Fardbeyan. There is injury on his ear, nose, mouth and neck. On the basis of Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted. On submission of the charge sheet, cognizance taken and the case was committed to the Court of Sessions where the charge was framed under Section 307/34 of I.P.C. 4. During trial ten witnesses were examined, who are P.W.1, Bisundeo Yadav, P.W. 2, Govind Mandal, P.W. 3, Rajendra Yadav, P.W.4, manoj Yadav, P.W.5, Radha Devi, P.W.6, Sunil Kumar Yadav, P.W. 7, Bhudeo Yadav, P.W. 8, Dr. N. K. Choudhary, P.W.9, Deep Narain Singh and P.W. 10, Ram Narain Singh. On considering both oral and documentary evidence, the order of conviction was recorded. 5. Learned counsel for the appellants however, contends that in the prosecution case, there is contradiction in weapon used and in the Fardbeyan there is mentioned 3 that weapon is Hasua and Pathria, bur during the trial it has developed Pasiyani Hasua and the injury report is copied and hence copy of injury report has not been proved and the evidence of the Doctor on the basis of copy alleged to be original is not sustainable and in the secondary evidence it has not been established and no step has been taken for bringing the original and original injury report has not been brought to prove the injury and the I.O. has also not been examined and there is contradiction in the evidence of the evidence of the witnesses who are interested and inimical and hence, there could not be brought to be reliable. Hence, prosecution has not been able to prove the charges. 6. However, the prosecution in the Fardbeyan of the informant, Bhudeo Yadav, P.W. 7 stated that on cry of Sunil Yadav, he along with other family members ran and found his nephew Sunil Yadav is injured state fallen there who disclosed on inquiry that Ram Lal Singh and Pramod Singh have assaulted by Hasua and Pathria, but he could not speak out why he was assaulted and got unconscious and is still unconscious so Fardbeyan of Bhudeo Yadav was recorded by A.S.I. on 27. 03. 1986 at about 11 hours, 4 though, occurrence alleged to quarters to 12 mid night in the preceding night. 7. However, P.W. 7, the informant has supported the prosecution case in the Fardbeyan, but that one difference is there that he has stated on enquiry Sunil Yadav disclosed that Ram Lal Singh and Pramod Singh assaulted by Pasiyani Hasua and he was taken to Medical College Hospital, Bhagalpur where Daroga recorded in his statement since the victim was still unconscious. 8. However, P.W. 1 has also supported the prosecution case and has stated that on hulla he along with three persons P.W. 1, 7 and 4 ran to the place where Sunil was lying injured and disclosed about assault by Pramod Singh and Ram Lal Singh by Pasiyani Hasua. P.W. 4 has also supported. However, has developed that he identified two persons fleeing away were Ram Lal Singh and Pramod Singh. However, P.W. 1 has stated that he along with P.W. 5 and 4 went to the place of occurrence, P.W.1 and 7 have not stated about fleeing away of two persons. 9. P.W. 6 is the victim. However, he has stated in his evidence that he was singing holy song at the darwaja of Mukhiyaji. Pramod also singing holy son and Pramod 5 asked to follow him to his dinner. Then he went there. He has further stated he took meal and sat in a room on cot then it is alleged that Pramod came with a rope and tied with his neck or try to pull it and Ram Lal assaulted by Pasiyani Hasua on his neck then he start fleeing and fell down on the back of his house. Both accused persons also chased him and assaulted him on fallen state and on hulla inmate of the house came then accused persons flee away then they carried him and he disclosed about assault. His statement was recorded after 2-3 days. However, he has stated that there is enmity with the accused persons with regard to the land. He has further stated that there was enmity. He has further stated that house of Mahesh is at a distance of 5-7 katha in the west and house of the accused persons about 15 to 20 steps from the house of Mahesh. He has further stated he was singing holy song and there are several people, but he did not remember who was drumming Dhol and who was on Jhal. He has further stated that he was singing song and from the house of Mukhiyaji even to take dinner and he had made hulla at the dawarja of the Mahesh. 10. P.W. 7, Bhudeo Yadav has stated in his 6 evidence that at the time he ran to the place of occurrence at that time also singing of the village was going on, but none came there. He has further stated that he went to the persons who were singing, but none came. He has further stated that Police Chouki at a distance about 1/4 k.m. and Jawahar Talkies House at a distance of 40 yards and Fari is at distance of 250 yards, but they did not go to the Fari. He has further stated that several people of the village came to the dawarja, but he can not say the person came was his friend or not ? 11. However, P.W. 8, is the Doctor, who examined in the case has proved the injury of Sunil Yadav and has stated that the following injuries; 1. Incised wound 8” x 2-1/2” mandible has been incised extending from cheek sharing to left side cutting of occipital region with loss of lobula. 2. Incised wound 5”x 3-1/4” muscle deep antsialy and bone incised postriaty. Left side of face above injury no. 1 exticing across the pinne of left ear to the mastoid region of left temporal bone. 3. Incised wound 1” x ¾” skin deep left shoulder. 4. Incised wound 2” x 1”x muscle deep- Left 7 side of upper part of neck. 5. Incised wound 3”x 3/4” bone exposed- Left side of cheek extending from filtrum to left rygomatic region. 6. Incised wound 5”x 3” bone exposed- Rt. Deltoid region. Pulse was not fill at the time of admission. B.P. was also not recorded and has proved injury report in his pen as Exhibit-3. 12. However, he has stated in his cross- examination that at what time he examined the patient is not mentioned in his report. He has not further stated that at what time he was on duty that he can not say without taking to his duty card., He has further stated that the patient has directly appeared and was informed by him. He was on duty, but no Incharge of the emergency ward was there when the patient turned then he examined the patient on that day. He has further stated that at the moment there is not record at what time of admission and examination and discharge of the patient. However, injury report Exhibit-3 has been proved which bears signature on 27. 06. 1986. 13. However, injury report Exhibit 3, is dated 27. 06. 1986 whereas Doctor in his evidence stated that he 8 examined on 23. 03. 1986 in his evidence and time of examination has not been mentioned neither in his evidence nor in the injury report. However, six injuries were mentioned. Out of six, two injuries have been shown to be grievous and rests are simple. However, injury shows grievous are sharp cutting but there is no reason assigned for. However, Injury No. 1 shown to be grievous due to loss of lobule. 14. However, during argument, it has been impressed that the Doctor may have copied out injury from the injury register. However, injury report itself appears to be doubtful when the date of occurrence is 27. 03. 1986 and injury report is dated 27. 06. 1986 and there is no mentioned in the reason about change of date either in his evidence or in the injury report and even learned counsel for the appellants has contends that if it is copied out any original then it is secondary evidence and does not at all shown where original is lying and no attempt was made for bringing the original injury register to prove the injury. 15. However, having regard to the fact, Doctor gave evidence on the basis of Exhibit-3 injury report 9 which does not mention the time. Doctor in his evidence has stated that he did not remember when he examined the patient and time has not been mentioned in his report and hence time of occurrence not mentioned when there is no mentioned when he examined the patient in the injury report does not mention the date and time of examination. 16. Hence, taking into consideration of evidence of the Doctor and injury report, the injury report does not inspire confidence. The I.O. has also not been examined. 17. Taking into consideration the facts and circumstances, though, P.W. 1, 3, 4 and 7 has supported the prosecution case about assault, though, P.W. 1, 4, 6 and 7 have supported the prosecution about assault, but P.W. 1, 3, 4 and 7 are interested witnesses and there is contradiction about weapons. Further development, P.W.4 says that he saw two persons fleeing away and victim also says that he saw two persons came and assaulted him, however, in the prosecution case that appellants singing holy song in the village and he went with accused to take dinner on the request of Pramod. However, there is prior enmity between the parties. Further, about the occurrence, 10 P.W. 7 has stated that several persons came. He has also stated at the time of singing holy song in the village going on he went and informed the persons who singing song, but they did not turn up. He has also stated that there are houses of several persons who are follows, but none turn up. No independent witness has turn up in the prosecution case to depose and evidence of the Doctor does not inspire confidence neither original injury report has been brought and the injury report proved Exhibit 3 is dated 27. 06. 1986 whereas occurrence is dated 27. 03. 1986 and there is no explanation by the Doctor about date. Further evidence of the Doctor that he did not record the time, hence evidence of the Doctor stated above does not inspire confidence. The I.O. has also not been examined in this case and no independent witness has turn up to support the prosecution case when the prosecution case is that victim was singing holy song in the village, but none turned up. P.W. 7 though, has stated that several persons came in the house after occurrence. Further it has come in evidence that Fari and T.O.P. at a distance of few yards/ at a quarter mile, but matter not reported in the night and F.I.R. drawn on the next date itself cast doubt. 11 18. Hence, under the facts and circumstances, I find and hold that in this case, accused persons are entitled to benefit of doubt as the prosecution has not been able to prove the charges beyond all reasonable doubt. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is accordingly allowed. Appellants shall discharge from liability to bail bond if any. Patna High Court The 4th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)