Criminal Appeal (U/S) No. 8 of 1999 IN S.L.A. 11/97 ~~~~~~ Against the judgment and order of acquittal dated 17.12.1996 passed by Shri Chakradhar Rai, learned Sessions Judge, Gaya in Cr. Appeal No. 96 of 1996. ~~~~~~ Ramanand Singh, Son of Shri Dukhi Singh, resident of village – Lalganj, P. S. – Belaganj, District – Gaya. …. …. Complainant .... .... Appellant. Versus 1. Anjay Kumar Singh. 2. Sanjay Kumar Singh. 3. Dhananjay Kumar Singh. 4. Jai Kumar Singh, All sons of Late Permanand Singh @ Sita Ram Singh. 5. Babu Lal Singh, Son of Rewat Singh. 6. Raman Singh, Son of Late Kailash Singh. 7. Lachchan Singh, Son of Late Kailash Singh. 8. Lakeshwar Singh, Son of Late Kailash Singh. 9. Rikhiya Devi, Wife of Late Permanand Singh @ Sita Ram Singh. All resident of village – Lalganj, P. S. – Belaganj, District – Gaya. …. …. Accused .... .... Respondents. ~~~~~~ Appearance : For the Appellant : Mr. Nand Kishore Prasad Singh, Advocate. For the Respondents : Mr. Arun Kumar Tripathi, Amicus Curiae. For the State : 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, learned amicus curiae and learned counsel for the State. 2. This appeal is directed against the judgment and order of acquittal dated 17.12.1996 passed by Shri Chakradhar Rai, learned Sessions Judge, Gaya in Cr. Appeal No. 96 of 1996. 3. The prosecution case as alleged in the complaint petition filed by the complainant Ramanand Singh is that on 19.03.1993 at about 2:30 P.M. while the wife of the complainant Kushum Devi was going to the parti land in front of the house of the accused/respondent Rikhiya Devi, she was abused and assaulted by 2 accused persons catching hold of her hair and she was thrown on the ground and thereafter the accused/respondents brutally assaulted her with fists and slaps. It is further alleged that the accused Sanjay Kumar Singh assaulted Ram Pravesh Singh who came to the rescue of the victim by dagger and accused Anjay Kumar Singh assaulted by brick in her mouth by which her two teeth were broken out and got injury on lips causing bleeding and swelling. The motive for the occurrence as alleged is that the objection has been raised for using the parti land as Rasta. Further case is that the matter was reported to the police but the police denied the truth of the case. Hence, the complaint case was lodged. 4. On the complaint, the cognizance was taken and the complainant examined on oath and after notice issued to the accused persons-the appellant, the trial proceeded after framing of charge. During the trial five witnesses were examined. The witnesses supported the prosecution case. The doctor P. W. 5 has proved the injury. However, he has found only two injuries on the person of the victim Kushum Devi which is bruise and abrasion and found the injury on the person of Ram Pravesh Singh and the doctor found one of the teeth broken and other fractured. The trial court convicted the appellant for the offence under Sections 147, 323, 325, 341 and 379 of the Indian Penal Code. Against the order of conviction an appeal was preferred before the appellate court i.e. the court of Sessions Judge, Gaya. The Sessions Judge heard the appeal and took into consideration the evidence of the witnesses. The appellate court taking into consideration the evidence of P. W. 4 the complainant, who in his evidence in para 8 has stated that after assault he along with his wife and Ram Pravesh Singh the injured and others went to the police station and the report was lodged. After lodging the case Daroga sent the injured to the hospital but in the complaint petition these facts are missing but the copy of the case lodged not proved hence 3 have held that there is inherent lacuna in the prosecution version. The complaint was filed on 07.04.1993 whereas the alleged date of occurrence is 19.03.1993 and the simple explanation given in the petition of the complainant and in the earlier testimony of the witnesses that when nothing was done by the police this complaint was lodged. The trial court disbelieved the explanation regarding the delay in lodging the complaint for such a long time. The appellate court further taking into consideration that the complainant has stated that the statement was recorded by the police but no attempt has made to produce the said recording of the statement which was earliest version and the trial court also taking into consideration the fact that though there is allegation about the brutal beating by several accused persons having been assaulted the victim Rikhiya Devi by slaps, fists and legs but the doctor has found only two injuries which is simple and superficial in nature and hence, observed that the evidence of the witnesses creates a doubt on the prosecution case as well as about the participation of the accused persons nine in numbers in the occurrence and further with regard to Ram Pravesh Singh it has been held that the case of the prosecution is that the two of the teeth had fallen where the doctor found one teeth broken and other fractured. Hence, taking into consideration all these facts and circumstances and abnormal delay in filing the complaint, disbelieved the prosecution case and acquitted the appellant of the charge which led to the filing of this appeal. 5. Learned counsel for the appellant, however, contended that the trial court has convicted the appellant taking into consideration the evidence of the witnesses and all of them claimed to be the eye-witnesses. 6. Learned counsel for the appellant, further, contended that the witnesses have supported the prosecution case and the trial court recorded the finding of conviction well appreciated the evidence of the witnesses as well as the evidence of 4 the doctor and even accepted the explanation for delay in lodging the First Information Report. The appellate court without considering the reasons given by the trial court set aside the order of conviction and sentence recorded by the trial court on conjecture and surmise. 7. Learned counsel for the State, however, contended that the occurrence is of the year 1993 and the appellate court has well considered the evidence in the light of the evidence of the doctor and the delay in lodging the First Information Report. 8. However, taking into consideration the respective submissions of the parties the prosecution case is that while the wife of the informant was going to the parti land abused and assaulted. It is alleged that she was thrown on the ground and five accused persons mercilessly assaulted her by slaps, fists and legs and snatched her silver ornaments and when one Ram Pravesh Singh came to rescue her was also assaulted by Sanjay Kumar Singh by dagger causing injury over the left temporal regions and Anjay Kumar Singh assaulted by the brick which caused two teeth of Ram Pravesh Singh fell down on the ground. However, the occurrence took place near the Kutti Machine of Daraj Mian. The witnesses supported the prosecution case. There is delay in lodging the First Information Report and the explanation has been given that the prosecution party went to lodge the fardbeyan the officer-in- charge, Belaganj and it was impressed that police will come in village to inquire and thereafter they went to the hospital where the injured were examined. However, during the trial though the witnesses come to support the prosecution case and trial court recorded the finding of conviction under Sections 147, 323, 325, 341 and 379 of the Indian Penal Code. 9. However, the doctor P. W. 5 has found only two injuries on the person of Kushum Devi (i) bruise on root of neck measuring 1-1/2” x 1” by hard and blunt substance and (ii) abrasion on fore arm on left hand measuring ½” x 1/8” x 1/10 c” 5 and he has found three injuries on the person of Ram Pravesh Singh (i) one teeth by the side of upper incised of right sided was broken out and another teeth was also fractured by inside of the teeth bleeding was found, (ii) sharp cutting injury on the left sided of ear near temporal region by sharp cutting intention size - 1-1/2” x 1/2" x 1/2” and (iii) bruise on right side of frontal region measuring 2” x 1/2" by hard blunt substance. 10. However, the injury found by the doctor is not in conformity with the allegation and the evidence adduced as there is allegation and evidence that the victim was assaulted indiscriminately and mercilessly but only two injuries have been found on the person of the victim Kusum Devi which is simple and superficial. The allegation in the complaint that two teeth of Ram Pravesh Singh was fallen down but the doctor found one teeth broken and another teeth fractured and one sharp cutting injury on the temporal region where the allegation of assault by dagger on the neck in the complaint case and hence the appellate court has rightly held that the oral evidence not in conformity with the medical evidence to record the conviction. Further taking into consideration the fact that the place of occurrence which is in front of Kutti machine of Daraj Mian and the said Daraj Mian having not been examined and further the explanation for delay in lodging the complaint case is not satisfactory as the occurrence is dated 19.03.1993 but the complaint petition has been filed on 07.04.1993 as delay about 18 – 19 days. 11. However, taking into consideration the reasons recorded by the learned appellate court, I do not find that the reasons given is perversed or on the basis of conjecture and surmise but based on sound reason. However, the occurrence took place on 19.03.1993 and it is the case that the police did not lodge the case and impressed that they will come to inquire the matter. However, the police did not turn up and hence lodging of the First Information Report after 18 – 19 days itself 6 is a long delay and no explanation has been given that why the step was not taken earliest for lodging of the complaint and this coupled with the ocular evidence does not confirm to medical evidence as the prosecution case of the witnesses is that the victim was mercilessly assaulted by slaps, fists and legs by several accused persons but only two injuries in numbers in the nature of simple and superficial does not confirm the oral evidence. Further the fact is that the injury and assault on the person of Ram Pravesh Singh also not substantiated. Moreover, the occurrence is of the year 1993 which is with regard to the dispute of Rasta and hence having regard to the facts and circumstances, I do not feel inclined to interfere with in the order of acquittal recorded by the appellate court and I do not find any merit to interfere with and accordingly, this appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 17th November, 2011. Kundan/N.A.F.R.