Criminal Appeal (SJ) No.102 of 1996 Against the judgment and order dated 16th April, 1996 passed by Sri Chiranji Singh, Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 331 of 1994. Nepali Singh @ Arvind Singh, Son of Bhagat Singh, resident of village – Lachnauta, P.S. – Sathi, District – West - Champaran. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. --------------- For the Appellant : Mr. S. N. P. Sinha, Sr. Advocate. Mrs. Mira Kumari, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. --------------- P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for the offence under Section 304 part I of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case as alleged in the fardbeyan by the informant is that P.W. 4 wife of the deceased that about 4 P.M. her son came and disclosed that Bijay Kumar Singh and Arvind Singh @ Nepali Singh had caught hold of them and was taking him to kill by dagger, then he made a cry on which the husband of the informant came to his rescue, then they left the son and assaulted Ramanand Yadav by 2 dagger. After receiving the information from his son she along with her cousin brother of her husband Ramanand Yadav and others went there and then saw Bijay Kumar Singh and Arvind Singh @ Nepali Singh are fleeing away and found her husband Ramanand Yadav lying in the field in injured state. The further case is that they saw Harendra Mishra lifting the victim up and is calling villagers and Harendra Mishra told that while he was attending the call of nature at a distance of about 100 yards then he saw on Halla that Bijay Kumar Singh and Arvind Singh @ Nepali Singh were abusing some girls, who were grazing goat and on which Ramanand Yadav protested then both of them caught hold of son of the victim and when the husband of the informant went to liberate then Bijay Kumar Singh caught hold of Ramanand Yadav and Bijay Kumar Singh and Arvind Singh @ Nepali Singh assaulted him by dagger and when the husband of the informant fell down then both culprits fled away. 4. On the fardbeyan of the informant, FIR was lodged and after investigation charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions where the charge was framed under Section 302/34 of the Indian Penal Code. 5. During the trial eleven witnesses were examined who is P.W. 1 Chandrabhan Kumar, P.W. 2 Bhata Raut, P.W. 3 Ramyad Yadav, P.W. 4 Somari Devi, P.W. 5 Harendra Mishra, P.W. 6 Sunita Kumari, P.W. 7 3 Dr. Sunil Kumar, P.W. 8 Rita Kumari, P.W. 9 Sk. Jahoor, P.W. 10 Rameshchandra Upadhaya is the I.O., P.W. 11 Manu Raut, P.W. 12 Anand Kishore Singh. The documentary evidence adduced is Ext. 1 is the post-mortem report, Ext. 2 is the fardbeyan, Ext. 3 is the inquest report, Ext. 4 is the seizure list at 11.06.1994 and Ext. 4/1 is the seizure list. 6. Learned counsel for the appellant, however, contended that the accused persons have falsely been implicated in this case and the prosecution has not been able to prove the charges beyond reasonable doubt. The police reached at the place of occurrence at about 4:00 P.M. however, did not record the statement of fardbeyan and inquest report was prepared at 7:15 P.M. but the name of the assailant or accused is not mentioned in the inquest report and the fardbeyan was recorded at 8:15 P.M. It has further been contended that the dagger and blood stained earth recovered from the place of occurrence was neither sent for chemical examination. All the witnesses are the family members of informant and no independent witness has come to support the prosecution case. 7. Learned counsel for the State, however, supported the prosecution case and that the prosecution has been able to prove the charges. 8. However, 11 witnesses examined in this case. Out of the 11, 4 P.W. 2 has stated that he did not know anything about the occurrence. However, P.W. 1 is the son of the deceased, he claims to be the eye- witness to the occurrence and he has stated in his evidence that on the date of occurrence at about 3:00 P.M. he was grazing the she goat to the south west of the village. Nepali Singh @ Arvind Singh came and surrounded his goat and caught him he was taking him to his house thereafter Arvind Singh @ Nepali Singh took out his dagger to kill him then he made a cry then his father came to his rescue then Arvind Singh caught hold of his father and Arvind Singh @ Nepali Singh assaulted by dagger thrice on person of his father by which his father fell down Bijay Kumar Singh and Arvind Singh @ Nepali Singh fled away. While his father while being taken to hospital died in the way. However, this witness has not stated anything about the fact that he went and informed in his examination in chief. 9. However, P.W. 4 is the mother of the P.W. 1 and is the informant and has stated that his son Chandrabhan Yadav came and disclosed that Arvind Singh @ Nepali Singh assaulted her husband by dagger then she along with her father-in-law and others went to the place of occurrence and she saw Bijay Kumar Singh and Arvind Singh @ Nepali Singh fleeing away and victim in injured state. 10. P.Ws. 2 and 3 he has also stated that on the information from Chandrabhan Yadav, he also went along with the informant and saw the 5 victim lying down in injured state. 11. P.W. 6 is the daughter of the informant and victim and she has stated that when she learnt from P.W. 1 she went to there and claims to have seen the accused persons fleeing away hence it is apparent that they are P.Ws. 3, 4 and 6 are hearsay and are not eyewitness to the occurrence. However, they claimed that when they reached at the place of occurrence they saw the accused persons fleeing away. However, P.W. 1 in his evidence has stated that he went and informed and the distance of the place of occurrence and the house of the victim said to be about one Bigha as per the evidence of the informant and has stated that while going from house to the place of occurrence she did not meet any person. However, P.W. 1 has stated that the accused persons gave 3-4 dagger blows on his father and hence he claims to be an eye witness and then he ran to his house informed his mother and then P.Ws. 3, 4 and 6 came to the place of occurrence then they saw appellant fleeing away does not inspire confidence. It is normal conduct that after assault the appellant will not remain found to place of occurrence. 12. However, the prosecution case in the fardbeyan that one Harendra Mishra was there and he disclosed that Arvind Singh @ Nepali Singh and Bijay Kumar Singh abusing the girl and the victim protested then the occurrence took place. However, the said Mahendra Mishra has been examined as P.W. 5 but he has not supported the 6 prosecution case and stated in his evidence that he did not know anything about the occurrence. He has not seen the occurrence and at the time of occurrence and hence has been declared hostile and has not supported the prosecution case and hence there is no evidence with regard to that part of the prosecution story as stated in fardbeyan about abusing of the girls who were grazing goat by assailants and then the deceased protested and then the occurrence took place. 13. P.W. 7 does not support that part of the story. 14. P.W. 10 is the I.O. he has stated that he got information that Ramanand Yadav has been murdered and then he reached in the village at 4:50 P.M. and recorded the statement of Somari Devi and read over to her and she signed and has proved the fardbeyan Ext. 2 he found the blood and make seizure list. He also got dagger and also prepared seizure list. However, the inquest report Ext. 3 mentions the time as 7:15 P.M. but does not mention the name of the accused. However, the fardbeyan has been proved Ext. 2 was recorded at 8:15 A.M. whereas the inquest report has been prepared as 7:15 P.M. that the I.O. reached at the place of occurrence at 4:50 P.M. However, he has stated that the blood seized and the dagger stained with blood was not sent for chemical examination. 15. P.W. 7 is the doctor and he found three injuries. Injury No. 1 a cut injury on the right upper arm of the size 1” x 1/2” x 1/2" (ii) One cut 7 injury on the base of neck of the size 2-1/2” x 1/2” x 1” (iii) One lacerated wound on the left thumb of the size 3/4" x 1/2" x 1/4". He has further stated that on dissection of the dead body, blood and blood clots were found. The cause of death is the injury no. 1 which is caused by sharp cutting instrument. However, in cross-examination he has stated that injury nos. 1 and 2 are heavy sharp cutting weapon and Chura is not a heavy weapon. However, neither the blood collected nor the dagger stained with blood was sent for chemical examination nor were produced in court. 16. Hence, taking into consideration the entire evidence having regard to the fact that though the P.W. 1 is only eye-witness to the occurrence and the prosecution case in the fardbeyan is in two parts; the first about the assault and then it is alleged that the P.W. 1 went to inform and then the informant with other witnesses came and one Mahendra Mishra disclosed the reason that Bijay Kumar Singh and Arvind Singh @ Nepali Singh were abusing some girl who were grazing the she goat in the field which was objected by Ramanand Yadav on which the occurrence took place. However, the second part abuse of girl leading to occurrence is the genesis of the occurrence but neither informant P.W. 1 nor Harendra Mishra came to support the prosecution case about genesis and hence the genesis itself has not been proved. There is allegation and the dagger recovered from the place of 8 occurrence but the said dagger not produced in evidence as material exhibit and the evidence of doctor that injury found can be caused only by heavy weapon. However, the dagger stain with blood neither sent for the chemical examination nor produced before the court and the doctor in his cross-examination on point of injury no. 1 and 2 has stated that dagger is not a heavy weapon. This also cast a serious doubt about the manner of occurrence. 17. The I.O. reached at the place of occurrence and remained there for about two hours but did not record the fardbeyan and even prepared the inquest report without recording the fardbeyan at 8:15 and inquest is 7:15 and in the inquest report any of the accused mention and it cast a serious doubt about the implication of the appellant and moreover except the family members have come to support the prosecution case. P.W. 1 is a child witness is the only eye witness and others are hearsay and are not the eye-witness and hence having regard to the facts and circumstances the appellant are entitled for the benefit of doubt as 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 appellant is acquitted of the charges, hence, the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 29th July, 2011. N.A.F.R./Kundan.