Criminal Appeal (SJ) No.45 of 1994 ****** Against the judgment of conviction and order of sentence dated 24.01.1994 respectively passed by Sri Rakesh Ranjan Verma, learned Assistant Sessions Judge – Ist, Sitamarhi in Sessions Trial No. 07/88/07/1988. ****** 1. Ram Padarath Mahto, Son of Late Pahari Mahto. 2. Vishwanath Mahto, Son of Late Ramnandan Mahto. 3. Sikandar Mahto, Son of Ram Padarath Mahto. 4. Lal Bihari Mahto, Son of Bharat Mahto. 5. Bharat Mahto, Son of Manjhi Mahto. 6. Ram Lal Mahto, Son of Biru Mahto. 7. Ram Niwas Mahto, Son of Biru Mahto. All are resident of village Mahuawa, P. S. – Bathnaha, District – Sitamarhi. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** Appearance : For the Appellants : Mr. Amish Kumar Jha, Advocate. For the Respondent : Mr. Parmeshwar Mehta, 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 appellants and learned counsel for the State. 2. The appellant no. 1 has been convicted for the offence under Sections 148, 324, 326 and 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year, one year, seven years and ten years respectively. Appellant nos. 2, 3, 4, 5, 6 and 7 have been 2 convicted for the offence under Sections 147, 323 and 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year, six months, one year and ten years respectively. Appellant nos. 6 and 7 have further been convicted for the offence under Section 379 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. 3. The prosecution case as alleged in the fardbeyan by the informant Ram Sogarath Raut P. W. 2 is that on 12.07.1987 Ramashis Raut P. W. 4 proceeded to the bus stand for going to Assam on 10.07.1987 along with Sikandar Mahto and Lal Bihari Mahto. They reached at Bhitna More and then he learnt that no bus is available. He learnt that the bus will start on the next day and hence Ramashis Raut remained there. Sikandar Mahto and Lal Bihari Mahto returned back. The further case is that on the next day Sikandar Mahto and Lal Bihari Mahto reached at Bhitna More and told him that his cousin and mother have quarreled and her mother has called him and then he proceeded to return to his home. He dropped at Sursand Chowk. Sikandar Mahto and Lal Bihar Mahto proceeded towards Musharniya. P. W. 4 Ramashish Raut proceeded to Sursand. He reached Sursand, saw Vishwanath Mahto and Ram Padarath Mahto there. He proceeded further then saw accused Bharath Mahto, Ram Niwas Mahto, Ram Lal Mahto, Sikandar Mahto and Lal Bihari Mahto. Lal Bihari Mahto called Ramashis Mahto 3 and thereafter it is alleged that all caught hold of him and assaulted. Lal Bihari Mahto tied his mouth. Ram Lal Mahto sat on the hand and assaulted by dagger. He got unconscious and regains consciousness at Muzaffarpur Medical College and was not in a state to speak out for a long period. His statement was recorded by the S.I. on 21.08.1987. However, the said Ramashish Raut was found in unconscious state at the Adhwara river having injury on his throat and abdomen. P. W. 2 informant and others came and then the victim was taken to Bathnaha Hospital and the First Information Report was lodged on the statement of P. W. 2 Ram Swagarath Raut. It was asserted in the fardbeyan that the victim along with Ram Ekbal Singh and Lal Bihari Mahto proceeded for Assam at about 8:00 A.M. At Bhitna More they learnt that the bus will proceed on the next day on which Lal Bihari Mahto returned to his village and disclosed that other three have gone to Khaira to the house of aunt of Ram Gopal Singh. Lal Bihari Mahto proceeded on the next day i.e. Saturday at about 9:00 A.M for going to Assam. The fact that the persons who went along with Ramashish Raut did not return and thereafter one child of the village Hari Singh brought the slipper of Ramashis Raut which was besmeared with blood and that it was found near a Pakar tree and only Ramashish Raut could say who was the assailant. 4. On the fardbeyan, the First Information Report was lodged and 4 during investigation the police also recorded the statement of Laxmi Raut and Ramashis Raut. However, the statement of Laxmi Raut recorded at 14.08.1987 i.e. Ext. 6 though designated fardbeyan and the statement of Ramashis Raut recorded on 21.08.1987. In his statement Ramashis Raut disclosed the fact. The police after investigation submitted the charge-sheet on which the cognizance was taken and the case was committed to the court of Sessions. 5. During the trial six witnesses were examined who are P. W. 1 Kantlal Mahto, P. W. 2 Ram Sogarath Raut the informant, P. W. 3 Paspat Raut, P. W. 4 Ramashish Raut an injured and the victim, P. W. 5 Ram Nihora Singh the I.O. of this case and P. W. 6 Jitendra Jha who has formally proved Exts. 5, 6, 7 and 8, is the fardbeyan of injured Ramashish Raut, is the fardbeyan of Laxmi Raut, is the requisition of examining the injuries. 6. P. W. 1 has supported the prosecution case that he found Ramashish Raut in injured and unconscious state having injury on his throat and abdomen and then on Halla the informant and others came. 7. P. W. 2 is the informant. He has also supported the prosecution case that he was informed by one child that Ramashish Raut is injured and in unconscious state and was taken to Bathnaha Hospital. 8. P. W. 3 is Paspat Raut. He has also supported the prosecution case saying that Ramashish Raut was found in unconscious state having 5 injury on his abdomen and throat. He was taken to Bathnaha Hospital and thereafter took him Muzaffarpur Medical Collage. 9. P. W. 4 Ramashish Raut is himself the injured and the victim. 10. P. W. 5 is the I.O. and has stated that he went go the Medical College, Muzaffarpur and obtained the injury report. During investigation he has written fardbeyan of the injured which has been marked “X” for identification. However, he has stated that he recorded the statement of the injured at his village on his return and he could not record the statement of the injured as he was unconscious in Medical College. 11. The trial court on consideration of the evidence of the witnesses and taking into consideration the fact that the doctor has not been examined in this case observed that in his opinion non-examination of the doctor as a witness is not fatal to the prosecution case as the injury report and discharge slip have been brought in evidence by formal proof and these papers amply proved the injury, convicted and sentenced as mentioned above. 12. The learned counsel for the appellants, however, contended that the First Information Report was lodged on 12.07.1987. There is no mention about the implication of the accused persons in the crime. It was mentioned for the first time in the statement recorded by the S.I. of Ahiyapur which has been marked “X” for identification as per the 6 evidence of the I.O. and the only evidence against accused persons are the evidence of P. W. 4 which is neither corroborated by the medical evidence nor corroborated by any other evidences. The doctor also has not been examined and injury report has formally been proved is hit by hearsay and is not admissible in evidence. It has further been contended that neither the bed head tickets has been proved or brought in evidence nor the doctor has been examined to prove the injuries and hence there is no legal evidence to prove that the victim was injured and was unable to speak out for several days. 13. Learned counsel for the State, however, submits and supports the conviction and sentence and submits that the prosecution has been able to prove the prosecution case. 14. However, taking into consideration the evidence in the light of the prosecution case the witnesses have supported the prosecution case that the victim was found in an injured and unconscious state at the bank of Aabara river. He was taken to hospital and there he was advised to be treated at Muzaffarpur Medical College. Though the evidence of P. W. 4 he has supported the prosecution case that he had to proceed for going to Assam and caught hold at Bhitna More. Thereafter Lal Bihari Mahto and Sikandar Mahto went to inform, then mother has called and while he returned and then he proceeded from Sunihara to his house then the occurrence took place as Musharniya. However, the trial court 7 while recording his statement has marked the demeanor of this witness that this witness is proceeded to give evidence in a parrot like manner. It appears that this witness has got the statement by learnt. This witness admitted the enmity by stating that at the sun set when he reached at Sunihara, it was dark and when he reached Musharniya there was no means of identification hence his evidence about the occurrence and identification suffer from infirmities and not inspire confidence. However, the injury report has been formally proved. The injury report is an opinion of the doctor and is required to be proved under 4th Clause of Section 60 of the Evidence Act by the doctor who has examined the injured. The opinion of the doctor which is required to be proved by the doctor. Even the certificate of the doctor is required to be proved by the doctor and formal proof is not admissible in evidence regarding the conduct of the injury as opinion. Neither the bed head ticket nor register regarding the entry and discharge has been proved. Hence, the evidence of P. W. 4 about his assault and injury is not corroborated by any other evidence nor corroborated by medical evidence. The evidence of P. W. 4 that he was unable to speak out and was hospitalized has also not been supported by documentary evidence. However, the statement of the victim recorded by Ahiyapur police has also not been proved. The I.O. in his evidence has stated that he recorded the statement of P. W. 4 at his village and the I.O. did not produce any document from the 8 hospital to prove that P. W. 4 was hospitalized. There is no corroboration to the evidence of P. W. 4. The doctor has not come forward to prove the injury or to give his opinion about the injury that P. W. 4 was injured and it has not been proved that due to injury victim was unable to speak out for the period and hence under the facts and circumstances, the conviction of the appellants mere on the evidence of P. W. 4 does not inspire confidence without any corroboration of medical evidence. 15. Hence, under the facts and circumstances, the appellants are entitled for benefit of doubt and hence I give the appellants benefit of doubt that the prosecution has not proved the case beyond reasonable doubt. The order of conviction and sentence recorded by the learned lower court is hereby set aside and this appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 9th September, 2011. N.A.F.R./Kundan.