CRIMINAL APPEAL No.59 OF 1998 (In the matter of an appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction dated 20th/22nd December, 1997 and order of conviction dated 23rd December, 1997 passed in Sessions Trial No. 133 of 1990/65 of 1997 by Shri Prabhu Nath Prasad, 3rd Additional Sessions Judge, Saran at Chapra). *********** VIJAY KUMAR SINGH, SON OF RAJ NARAIN SINGH, RESIDENT OF VILLAGE KOTHIA, POLICE STATION AWATAR NAGAR, DISTRICT SARAN..APPELLANT VERSUS THE STATE OF BIHAR ………………………………………….…RESPONDENTS ************** FOR THE APPELLANT :- MR. DINESH KUMAR SINGH, SR. ADV. MR. ANURAG SAURAV, ADVOCATE MR. AWADHESH KUMAR, ADVOCATE FOR THE S T A T E :- MR. S. AZEEM, A.P.P. ********** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. Out of the two accused persons who were facing trial, Raj Narain Singh was acquitted by the judgment dated 20th/22nd December, 1997 by the 3rd Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 133 of 1990/65 of 1997 and the appellant was convicted to undergo rigorous imprisonment for seven years under Section 307 of the Indian Penal Code. 2 The occurrence is said to have taken place on 24.03.1989 in which it has been alleged that the informant Rajgir Singh was assaulted by two persons including this appellant. Rajgir Singh fell down after the assault and he was taken to the Police Station by Ram Ugrah Mahto, Jai Prakash Mahto and Bhola Sah. From the Police Station, it is said that he went to Chapra where he was treated by the doctor and thereafter he was referred to the Patna Medical College and Hospital, Patna. The fardbayan was recorded at the Patna Medical College and Hospital, Patna on 04.04.1989. There are certain important features in this appeal which may be mentioned at the outset. Firstly, that the occurrence took place on 24.03.1989; the Dighwara Police was informed on the same day by the informant. The injuries of Rajgir Singh were noted by the S.I. who recorded the Sanha. Rajgir Singh was examined at Chapra on 25.03.1989; on 25.03.1989 admitted to the Patna Medical College and Hospital, Patna; fardbayan of Rajgir Singh was recorded on 04.04.1989; on 05.04.1989 Rajgir Singh was discharged from the Patna Medical College and Hospital, Patna and finally the First Information Report was instituted on 23.04.1989 at Dighwara Police Station. Keeping the aforesaid facts in mind, this Court has to examine the evidence that has been led during the trial to substantiate the prosecution case. At the outset, it would be relevant to 3 mention that named witnesses in the FIR have not been examined in this case at all. The Investigating Officer took up the investigation after more than a month of the alleged occurrence and he has said to have examined two witnesses, namely, Magia Devi (PW 1) and Ram Layak Singh (PW 2) who claims that they are the eye-witnesses to the alleged occurrence. PW 1 Magia Devi stated that she was sitting outside her hut and from the distance she saw that the informant was being assaulted by the two named accused persons. PW 2 has stated that he heard some sound, thereafter he ran to the place of occurrence, where he saw the appellant and his father assaulting the informant with lathi. The informant became unconscious due to the injuries inflicted on him. I think it would be proper to discuss the submission in this case with respect to the evidence of these two witnesses. Learned Counsel submits that PWs 1 and 2 are not named in the First Information Report. On perusal of the records, I find that they have been examined by the Investigating Officer in preference to the First Information Report witnesses either deliberately in order to help the informant to establish his case or sheer negligence of the Investigating Officer himself. With respect to the quality of 4 the evidence, learned Counsel submits that it would appear that while describing the place of occurrence, the Investigating Officer has not stated or describe any hut to be present near the place of occurrence. It is further submitted that the evidence of PWs1 and 2 are in conflict each other as both of them have no knowledge of the presence of each other near or about the place of occurrence and as such their evidence should be discarded. It is true that these two witnesses are not named in the First Information Report by the informant and it is even more strange that the Investigating Officer decided to examine these two witnesses in preference to the three witnesses who have been specifically named in the FIR without giving any explanation for not examining the eye-witnesses named in the First Information Report. Having introduced PWs 1 and 2, the Investigating Officer should have also specifically mentioned the circumstances under which he felt the need to examine them with respect to the occurrence that took place on 24.03.1989. Therefore, this Court has no option but to disbelieve the evidence of PWs 1 and 2 with respect to the alleged occurrence. The most important witness in this case is the informant himself. This witness has stated in the First Information Report that he had given information to the Dighwara Police Station regarding the alleged occurrence. It 5 is also claimed that he was referred for further treatment to Patna Medical College and Hospital, Patna. In the intervening period, before going to Patna Medical College and Hospital, Patna, the informant surprisingly enough got himself examined at Chapra and also got a X-ray to show that he had a head injury and fracture on the parietal region of the head. Learned Counsel submits that the Sanha which is the earliest version of the manner of the occurrence has not been produced before the Trial Court. Infact while giving evidence, this witness has given a complete go-bye and deserted his earlier claim that he had registered or given any information to the Dighwara Police Station regarding the occurrence. Not only this, the informant disclaimed the story that he had visited Dighwara Police Station but goes so far as to say that if any such statement is produced before the Court, it has not been made by him. Learned Counsel submits that the evidence of PW 3 reveals that he has tried to build up a case that a serious injury was caused to him because of the fact that there was admittedly a land dispute between the informant and the appellant for which proceedings under Sections 144 and 107 of the Code of Criminal Procedure were pending. It is submitted that the Sanha was purposely withheld for the reason that the informant had received simple injuries. Therefore, in order to build up a case that the appellant and his father had 6 assaulted and inflicted grievous injury, the entire facts were brought on record. The fact that the Sanha was recorded at the Dighwara Police Station is supported by the Investigating Officer. Having said that, the Investigating Officer (PW 7) has not produced the Sanha recorded by him. Even more shocking is the fact that having received information that an offence has been committed within his jurisdiction, Krishna Murari Rai, PW 7 (Investigating Officer in this case) took no steps to enquire into the matter. The evidence of the informant regarding the manner of occurrence and regarding the injury which he claims he had received have to be tested in the light of the evidence of PWs 4, 5 and 6. PW 4 was posted at Sadar Hospital, Chapra as Civil Assistant Surgeon on 24.03.1989. He claims that he had examined the injuries on the person of the informant. According to him, the injuries on the head were grievous and the patient was unconscious. X-ray report has been described by him to be dated 25.03.1989 which shows that there is fracture of small bones and thus, he has referred to the informant to Patna Medical College and Hospital, Patna on 25.031989 itself. In cross-examination, this witness has stated that on the basis of the X-ray plate, he has referred the informant to the Patna Medical College and Hospital, Patna. Similarly, PW 6 was posted as Civil Assistant 7 Surgeon in Chapra on 24.03.1989. He submits that the informant was suffering from the head injuries and fracture of skull. This witness claims that he was admitted in Chapra on 24.03.1989 and was referred to Patna Medical College and Hospital, Patna on 25.03.1989. This witness in his cross- examination has fairly stated that he has not sent the injury report, bed head ticket and the discharge slip to the Police as it was not his duty to do so. Again, it may be noticed here that although the informant was examined at Chapra, no report was made in the Police nor was there any constable accompanying the informant for the purpose of getting him examined by the Civil Assistant Surgeon at Chapra. Infact, there is no link as to how the informant landed up at Chapra and got himself X-rayed at a private hospital without any information or assistance of the Dighwara Police Station. PW 5 is a technician at Mahavir X-Ray Clinic where the X-ray of the informant supposedly took place. He has proved the signature Exhibit-3 and X-ray plate as Exhibit-4. In this manner, the informant reached the Patna Medical College and Hospital, Patna on 25.03.1989 where he gave his fardbayan on 04.04.1989. No explanation has been given by the informant as to what took place between 25.03.1989 to 04.04.1989. The doctor at Patna Medical College and Hospital, Patna has not been examined to substantiate the nature of the injuries on the informant or the treatment that 8 he was receiving at Patna Medical College and Hospital, Patna during the intervening period. PW 8 has been examined to prove that Rajgir Singh was admitted in the Patna Medical College and Hospital, Patna under Dr. A. K. Sinha. The name is found in the register of Surgeon-on-Duty on 25.03.1989. On the basis of the aforesaid evidence and facts, this Court has to decide whether the conviction and sentence of the appellant is justified in view of the glaring lacunae in the case of the prosecution and infact in the very evidence of the informant after considering all the medical evidence before this Court. The most striking feature is that not a single injury report has been produced by the prosecution. It would be apparent that the informant was firstly examined at Dighwara, then at Chapra and finally at Patna Medical College and Hospital, Patna but the only evidence is the doctor’s statement before the Trial Court who says that he had examined the informant Rajgir Singh and found stitched injury on his head. The missing link here is that the informant has not been able to disclose the doctor’s name or the hospital where he received first aid and had his wounds stitched. The doctor does not even care to give the length of the wound, age of the wound etc. The X-ray report itself is vague; it merely stated that fracture line is marked by red arrows. The report gives the name of Rajgir Singh 9 referred by Dr. Suresh Prasad. I may also refer to another important aspect which has been emphasized on behalf of the appellant. It is submitted that after the fardbayan was recorded on 04.04.1989, it was forwarded to the Police Station at Dighwara. From the judgment, this Court could know that it was received at Dighwara Police Station on 10.04.1989. No reason or explanation has been given by the Investigating Officer as to why he took such a long time to institute a case. The case was admittedly instituted on 23.03.1989. The delay remains a mystery for this Court. Infact, this Court is rather surprised by the manner in which the Investigating Officer Krishna Murari Rai has carried out the investigation of the case. Even after receiving information, the Officer-in-charge has not bothered to make any queries regarding the fact that whether any such occurrence has taken place or not, specially in view of the fact that there was already proceedings under Section 144 and 107 of the Code of Criminal Procedure pending between the parties and the Officer-in-charge would have been aware of the land dispute between the parties. Shockingly, even after receiving the fardbayan, the Investigating Officer has not produced the Sanha although he admits that he had knowledge of the occurrence and had also recorded the types of injuries received by the informant. The Investigating Officer did not 10 think it necessary to immediately institute a case even after receiving the copy of the fardbayan which was sent to him by special messenger, thereby causing delay not only in the institution of the case but also in the investigation of the case. This is a good enough reason for this Court to doubt the prosecution case. Going a step further, the entire bundle of facts, the allegations, the medical report, evidence of witnesses specially the evidence of PW 3 before the Trial Court leads this Court to conclude that the entire manner of the occurrence have been distorted and prosecution has not come up with a true facts surrounding the occurrence and as such the appellants cannot be convicted for offence under Section 307 of the Indian Penal Code.. Learned Counsel for the appellant has relied on a decision in the case of Thulia Kali vs. The State of Tamilnadu reported in AIR 1973 SC 501 wherein the Supreme Court has held that the First Information Report is very important to test the prosecution case and it should be instituted without any delay. As noted above, the facts of the case stand on a better footing as delay in investigation of the matter possibly leads to destruction of important piece of evidence which may prove to be fatal to the prosecution version In view of the facts and discussions made above, I find that this Court is unable to hold that the 11 prosecution has been able to prove their case beyond reasonable doubts and certainly they have not been able to prove that the occurrence took place in which the grievous injury was inflicted upon the informant Rajgir Singh and as such this Court acquit the appellant Rajgir Singh for the offences under Section 307 of the Indian Penal Code. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is also discharged from the liabilities of the bail bonds furnished earlier in this case before the Trial Court. In the result, this appeal is allowed. ( Sheema Ali Khan, J. ) Patna High Court March 30, 2009 A.F.R./Anand