IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.36 of 1997 ****** Against the judgment, dated 25.01.1997 passed by Shri Devi Dayal Prasad, 1st Additional Sessions Judge, Arrah in Sessions Trial No. 37 of 1995. 1. Sidh Nath Singh 2. Gupteshwar Singh @ Sachida Nand Singh, Both sons of hajari Singh 3. Babu Nand Sinigh @ Sri Niwas Singh, son of Gupteshwar Singh 4. Anjani Singh @ Vinod Kumar singh 5. Digraj Singh @ Abhay Singh, Both sons of Sidh Nath Singh All residents of village Baghi, Police Station- Sahar, District- Bhojpur. Accused/Appellant/s Versus State Of Bihar Respondent. ****** For the Appellant : Mr. Rana Pratap Singh, Senior Advocate Mr. Shivendra Pratap Singh Mr. Sumant Singh For the Respondent : Mr. Parmeshwar Mehta, A.P.P. CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. A report was called for by the order dated 02.09.2011 regarding death of appellant no. 2 Gupteshwar Singh @ Sachidanand Singh from the S.P., Bohjpur at Ara. The report has been received by the said Gupteshwar Singh @ Sachida Nand Singh has been died on 17.11.2010. Hence, the appeal against this appellant no. 2 Gupteshwar Singh is abated. Patna High Court CR. APP (SJ) No.36 of 1997 dt.12-12-2011 2 Appellants have been convicted under Section 307 and 148 of the Criminal Procedure Code and have been sentenced to undergo rigorous imprisonment for five years and to pay a find of Rs. 200/- each and in default of fine to undergo simple imprisonment for four months further sentenced to under go rigorous imprisonment for one year each for offence under Section 148. However, it has been ordered that both the sentences run concurrently. Prosecution case as alleged in the First Information Report that on 07.06.1993 at about 07:00 A.M. while the informant was throwing rubbish (ghur), then the co-villagers Sidh Nath Singh, Gupteshwar Singh, Babu Nand Singh, Anjani Singh, Digraj Singh, Sunil Singh and Vidya Sagar Singh came armed with lathi, bhala, gun and rifle surrounded the house of informant and fired. It has further alleged that the Anjani Singh gave a bhala blow on Binod Kumar. Sidhnath Singh assaulted the informant by lathi on his head and shoulders. It is alleged that Digraj Singh Gupteshwar Singh assaulted on his knees and Sunil assaulted by bricks and Jaggu and Babunand Singh assaulted the informant by lathi. The motive of occurrence alleged that the rubbish (ghur) of both the parties were kept Patna High Court CR. APP (SJ) No.36 of 1997 dt.12-12-2011 3 at same place in between the house of the informant and appellant and the occurrence took place for taking out the rubbish (ghur). On the fardbayan the first information report lodged and after investigation the chargesheet was submitted and cognizance taken place, case committed to the Court of Session, charges framed under Section 307 and 148 of the Indian Penal Code. During the trial eight witnesses were examined by the prosecution. The witnesses P.W. 1, 2, 3, 4 & 5 have supported the prosecution case as mentioned in the fardbayan. P.W.-6 is the doctor who found the injury on the person of Binod Kumar, Jhagru Singh and Chhatrabali marked as Exbibit 3 to 3/2. However, the injury on the person of Jhagru Singh and Chhatrabali Singh caused by hard and blunt substance are simple except the injury no. 1 on the person of Chhatrabali. The Doctor opined that no definite opinion can be given. With regard to the injury and weapon used regarding injury no. 1 of Binod. P.W. 7 is the Investigating Officer who inspected the place of occurrence and given the description of the place of occurrence found ghur on land in between the house of informant and accused. The defence has also adduced both oral and Patna High Court CR. APP (SJ) No.36 of 1997 dt.12-12-2011 4 documentary document evidence D.W. 1 is the Dr. Virendra Kumar Rai who has proved injury on the persons of the accused Anjani Kumar, Shriniwas Singh, Digraj Singh and Gupteshwar Singh, Sidhnath Singh and has also examined D.W.-2 Shri Ashok Kumar Choudhary who has proved the post-mortem report of the deceased Sunil Singh and Vidya Sagar Singh. In which the anti mortem injury found on the person of Sunil Singh were three lacerated wounds (1) circular inverted margin on the back of the chest right side ½” in diameter, 2 on the middle part and one on the lower part. (2) one lacerated wound circular inverted margin right arm backside size ½” in diameter (3) 2 lacerated wounds, size ¾” in diameter on chest middle part anterior, these two wounds are communicating to each other and on the second wounds on the chest middle part of the right side, right legs were lacerated it took place. So, one substance taken out from abdomen cavity, chest cavity was full of blood. All the injury found to be anti mortem caused by fire arm, may be rifle and the time elapse since within 24 hours. The post mortem was conducted on 07.06.1993 at 03:45 p.m. and the injury found on Vidyasagar was multiple lacerated wounds on chest, neck, both arms and both thigh anterior size of the Patna High Court CR. APP (SJ) No.36 of 1997 dt.12-12-2011 5 wound was 1/8” x 1/8” with chaining of skin with an inverted margin and all the injuries were anti mortem caused by fire arm. The time considered within 24 hours with the postmortem examination was conducted at 03:00 p.m. The documentary evidence adduced by defence are the exhibit ‘A’. Fardbayan counter case out of which a session trial no. 312/93 arose, exhibit-B is the first information report of the counter case bearing Sahar P.S. 40 of 1993. Exhibit ‘C’ series are the injury report on the person of accused proved by doctor. Exhibit-D-1, Exhibit D-2 is the postmortem report. The trial court taking into consideration, the evidence of the witness convicted the appellant as mentioned above taking into consideration the fact that the witness has supported the prosecution case as alleged in the First Information Report of the informant. The injury has also been found by the doctor. Hence hold that the oral evidence has been corroborated by medical evidence brush aside the defence evidence on ground that P.W.-1, 2 and 5 have not specifically stated regarding injury caused to the accused and Exhibit-6 and 7 series are Parwana and rent receipt in the name of informant where accused person has Patna High Court CR. APP (SJ) No.36 of 1997 dt.12-12-2011 6 not given any chit of paper that the land is Gair Majarua land where rubbish were kept after the prosecution not required to give any explanation for injury on person of accused as possibility that accused person might have tried to take possession of land may have led to free fight between the parties. Learned counsel for the appellant however, contends that this is a case of case and counter case and it is apparent from the prosecution case as well as the evidence of the witnesses that the occurrence took place for lifting the rubbish put on the land in between the houses of the two parties and the said land was Gair Majarua land. It is asserted by prosecution that the said Gair Majarua land was settled with the prosecution and the appellant has no concern but the defence has proved the injury on several persons and two persons who have been named as accused have been died by a fire arm injury but the injury has not been explained which are not simple and superficial and hence the prosecution case required to be disbelieve regarding the genesis and manner of occurrence as doubtful. Learned counsel for the state however contends that the prosecution has been able to prove the charges by Patna High Court CR. APP (SJ) No.36 of 1997 dt.12-12-2011 7 counter and evidence and substance injury has been corroborated by the doctor. Taking into consideration the case of the prosecution in the light of submission made by the parties this is case of case and counter case. The case of the prosecution that the occurrence took place for taking the rubbish kept as place in between house of the accused and prosecution. First information report of both parties has been marked Exhibit ‘4’ as well as Exhibit ‘A’. The admitted case of the parties that occurrence took place for taking the rubbish kept on land in between the house of both the prosecution and accused. The time of occurrence and the place of occurrence in both the cases are same. P.W. 1, 2 , 3, 4, and 5 supported the prosecution case that the occurrence took place while they were lifting the rubbish . Arjun Prasad P.W. 6 doctor has proved the injury report dated 08.06.1993 Exhibit 3 to 3/2 about injury on injured Binod Kumar , Chhatrabali Singh and Jhagru Singh which are abrasion, bruise and swelling on person of prosecution party. I.O. in his evidence stated that there is rubbish on land in between the house of both accused. The defence has proved the fardbayan and First Information Patna High Court CR. APP (SJ) No.36 of 1997 dt.12-12-2011 8 Report of counter case and D.W. 1 and 2 has proved the injury on person of accused which is Exhibit C series and their admissions in Hospital as bedhead are Exhibit D and D/1 and Exhibit E and E1 the postmortem report of two of the accused persons. The occurrence is dated 07.06.1993 and injury report and postmortem report is dated 07.06.1993 itself. Both the First Information Report of case and counter case is with regard to the same place and time of occurrence and witness of one case is accused in another with a distinction that two of person named as accused in First Information Report of this case are dead by injury remained on them on same transanction for whom the postmortem report Exhibits E and E/1 which shows that two persons named as accused died at about the time of occurrence. The prosecution has proved that Exhibit 6 and 7 that the land settle with him and there is rent receipt. The case of prosecution is that accused person came by armed with lathi, Bhala, gun and rifle surrounded the house of informant and accused which was settled with them and new rent receipt has been issued. However, the accused person has proved the counter case and injury on their person which is Exhibit ‘C’ series Patna High Court CR. APP (SJ) No.36 of 1997 dt.12-12-2011 9 an Exhibit ‘D’ series about their admission in hospital and postmortem report of co-accused Sunil Singh and Vidyasagar Singh Exhibit E and E/1 with regard to their injury by fire arm at about the time and place of occurrence. There is no explanation by the prosecution about the injury on the person of the accused and no explanation about the injury which are not simple and superficial hence non- explanation on injury on person faced fatal for prosecution case that the prosecution has not come with clean hand and suppress the material fact about the genesis as well as manner of occurrence to make the prosecution case doubtful and the appellant are entitled to benefit of reasonable doubt and this is well settled by Apex Court. However, the trial Court mislead itself in holding that since the prosecution has proved that land was settled with the prosecution and rent receipt issued to the prosecution does not absolve him to explain the injury on the person of the accused person. There is no case of the prosecution that there was free fight and the prosecution party resorted to fire. Hence, there is no explanation about the injury of accused which is Exhibit ‘C’ and ‘E’ series The trial Court however convicted the appellant on the ground that injury on person Patna High Court CR. APP (SJ) No.36 of 1997 dt.12-12-2011 10 of accused may be due to free fight between the parties. However, this finding is based against the evidence on record on conjecture and surmises and further making out a third case. It is well settled that the prosecution is required to explain the injury on person of accused. Non-explanation leads to inference that prosecution has not come with clean hand and suppressed the material fact about the genesis and of occurrence and makes the prosecution case doubtful and the appellant is entitled to benefit of doubt, hence the order of conviction and sentence recorded by the lower Court is hereby set aside as the prosecution has not been able to prove the prosecution case. They are ordered to be acquitted and discharge from the liability of the bail bond, the appeal is allowed. The Patna High Court The 12th Day of Dec., 2011. Saif/-N.A.F.R./ (Gopal Prasad, J.)