CRIMINAL APPEAL No.247 OF 1992 (Against the Judgment of conviction and order of sentence dated 23.9.1992 passed by Sri Diwakar Jha, the then Additional Sessions Judge, Bhabhua, in Sessions Trial No.497/85 of 1986/1990). ………. 1. BILBIL GOSAI , SON OF SRI SARAJU GOSAI. 2. MUKTHESHWAR KAMKAR, SON OF SIRPUJAN KRAMKAR. BOTH RESIDENTS OF VILLAGE BHARKHAR, P.S. MOHANIA, DISTRICT- BHABHUA. ……………………………………………………………………………..APPELLANTS. Versus THE STATE OF BIHAR--------------------------------------------------------RESPONDENT. ……….. For the Appellants : Mr. Anuj Prakash, Amicus Curiae. For the State : Mr. Jharkhandi Upadhyay, A.P.P. …………… P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha,J: The two appellants who alongwith others have been arrayed as accused in Mohania P.S. Case No.74 of 1986 giving rise to Sessions Trial No.497/85 of 1986/1990, have filed this appeal impugning the judgment of conviction and order of sentence dated 23.9.1992 passed therein by Sri Diwakar Jha, the then Additional Sessions Judge, Kaimur at Bhabhua, whereby accused Bilbil Gosai has been convicted for offences under Sections 307 and 447 I.P.C. and 27 of the Arms Act and accused Muktheshwar Kamkar has been found guilty of offences under Sections 307/34 and 447 I.P.C. and whereas Bilbil Gosai has been sentenced to undergo rigorous - 2 - imprisonment for 10 years for the offence under Section 307 I.P.C. and 5 years rigorous imprisonment under Section 27 of the Arms Act, Muktheshwar Kamkar, has been sentenced to undergo rigorous imprisonment for 10 years under Sections 307/34 I.P.C. However, no separate sentence has been awarded in respect of the offence under Section 447 I.P.C. The sentences of Bilbil Gosai were directed to run concurrently. 2. The prosecution case is based on the fardbeyan given by Mohan Rai at 4 A.M. on the morning of 7.6.1986 and was in respect of an occurrence which took place in the night of 16/17th June, 1986. According to him he went to sleep at the flour mill, north of the village, at around 9 P.M. and was sleeping on a cot on the roof of the flour mill house. He was wakened from sleep at around mid-night on hearing some unusual sound. As he tried to get up, accused Bilbil Gosai, armed with a country made katta came running to him and touching the katta near his right armpit fired. It is said that the informant reacting tried to catch hold of Bilbil Gosai and in the process he saw accused Teju Pandey armed with a gun and Muktheshwar Kamkar armed with a lathi standing nearby and stopped in his tracks out of fear. All the three accused then got down from the roof. The informant claims to have identified all the accused in the moon light. It is also said that Bechan Kherwat who was also sleeping on the roof of his house on hearing the sound of gun firing raised alarm as did the informant hearing which the villagers assembled to whom the informant claims to have disclosed the names of all the - 3 - three aforesaid persons. It was also said that the informant was the Sarpanch of the Gram Panchayat and often admonished the accused persons who frequently indulged in overt acts of theft and outraging the modesty of females. It is claimed that all the three accused aggrieved by the admonition of the informant conspired against the informant at the behest of some enemies of the informant. 3. After due investigation the police submitted a chargesheet under Section 447, 326, 307/34 I.P.C. as also Section 27 of the Arms Act against all the three accused. After commitment, co-accused Teju Pandey died during the pendency of the trial and accordingly the proceeding against him abated. Whereas both the surviving accused were charged under Section 447 I.P.C., accused Muktheshwar Kamkar was charged under Section 307/34 I.P.C., Bilbil Gosai was charged under Section 307 I.P.C. as also Section 27 of the Arms Act to which they pleaded not guilty and claimed to be tried. 4. At the trial the prosecution examined as many as 9 witnesses in support of its case of whom P.W.3, Bikrama Singh and P.W.5 Bechan Kharwar, have been tendered. The prosecution also adduced documentary evidence of which the fardbeyan is marked as Ext.1, the formal F.I.R. as Ext.2 and the injury report as Ext.3. 5. The defence of the accused is of false implication, at the instance of the informant, regarding their participation at the occurrence. 6. The grievance of the appellants is that the learned trial Judge had failed to consider the prosecution evidence in its proper - 4 - perspective and in view of non-examination of the doctor the alleged injury sustained by the informant remains unproved and the case of the defence is adversely affected thereby. It is also submitted that the learned trial Judge had failed to take into account that the informant himself is involved in police case for the murder of accused Teju Pandey being Mohania P.S. Case No.18 of 1987. This only goes to prove the motive for false implication of the appellants. Grievance has also been raised against the learned trial court for not taking into consideration the contradictions in the statements of the P.Ws. which only goes to show that most of the witnesses were not aware about the place of occurrence even as the prosecution case is that they were eye witnesses to the occurrence having been present there. The motive for the occurrence as suggested by the prosecution has remained unproved. 7. Admittedly, as per the fardbeyan of the informant he is the sole eye witness to the occurrence which took place around mid- night while he was sleeping on the roof of the mill house. This would mean that all the other witnesses are hearsay witnesses. This would also be apparent from the fact that in the fardbeyan itself it has been stated that on alarm being raised by the informant and Bechan Kherwat, the people of the neighbourhood assembled. It is also stated in the fardbeyan that it was the informant who had disclosed the names of all the accused persons to the villagers. Therefore, the evidence of all the witnesses except the informant appears to be that of hearsay witnesses. It also appears that the doctor who examined the - 5 - injured informant has not been examined. Therefore, the nature and manner of injury that had been sustained by the informant remains unproved. The prosecution has not been able to explain satisfactorily why the doctor could not be examined and the injury report has been proved by P.W.9, a formal witness. P.W.9, not being the author of the injury, his testimony in respect of the injury report cannot be accepted. Even so I ventured to look into the injury report (Ext.3) which reveals that the informant had sustained one injury which is a single round hole about 1/8” in diameter and about 1” deep on anterior auxiliary line of right 3rd intercostal space. The margin of the wound was irregular and inverted with bleeding edge and was simple in nature caused by firm arm. The distance of the fire arm was about within 25 yards from right lateral side. The nature of the injury itself appears to falsify the prosecution case since according to the informant Bilbil Gosai had put the pistol at his right armpit and if the story was to be believed then there ought to have been charring and tattooing marks around the injury sustained. It also appears that the boundary of the place of occurrence as given by the P.Ws. varies from witness to witness and as such the identification of the actual P.O. is not established. 8. To my mind, from perusal of the evidence on record and the judgment of the trial court, it appears that the prosecution has not been able to prove its case beyond all reasonable doubts. 9. In view of the discussions made above, I am unable to uphold the judgment of the learned appellate court and do hereby set - 6 - aside the judgment of conviction and order of sentence recorded against both the appellants. 10. In the result the appeal is allowed and the judgment of conviction and order of sentence are hereby set aside. The appellants are on bail granted vide order dated 30.10.1992 of this Court. They are discharged from the liabilities of their respective bail bonds. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 13th day of August, 2009. Pradeep Srivastava/A.F.R.