Criminal Appeal (SJ) No.975 of 2006 Against the judgment of conviction dated 28.08.2006 and order of sentence dated 29.08.2006 passed by Additional District & Sessions Judge, Fast Track Court No.V, Bhabhua, Kaimur in Sessions Trial No.103 of 1995, Trial No.43 of 2005 arising out of Kudra P.S.Case No.78 of 1994. 1. MAHENDRA SAH & 2. PRADIP SAH.... .... APPELLANTS VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellants: Sri S.N.Prasad (Amicus Curiae) For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. Eleven accused persons were named in the FIR of Kudra P.S.Case No.78 of 1994 who were sent up for trial by the investigating officer of that case and accordingly they were charged under Sections 302/149 IPC besides also being charged under Sections 148, 323/149, 325/149, 307/149 IPC. After conclusion of the trial, nine accused persons were acquitted by the same judgment dated 28.08.2006 which was passed by the learned Additional Sessions Judge-cum-Presiding 2 Officer, Fast Track Court No.V, Bhabhua by which the two appellants were found guilty of having committed an offence under Section 304 II IPC. The appellants were heard on sentence on 29.08.2006 and were directed to suffer rigorous imprisonment for three years under the above Section of the IPC. The two appellants appeal jointly against the judgment of conviction and order of sentence. 2. Ramchandra Sah(P.W.7), the husband of the deceased Ekadashi Devi alleged that on 30.05.1994 at about 6 P.M. all the accused persons armed variously came inside his house and started plundering it, the lady inmates of the house, raised a hue and cry upon which the accused persons started insulting them. At that particular moment no male member was present in the house. The informant was attracted to his house by the hullah raised by the ladies. The lady family members objected to the high handedness of 3 the accused persons. The accused persons, thereafter, surrounded the informant and his family members and assaulted them with various weapons. As regards the two appellants, Mahendra Sah and Pradip Sah, they are jointly alleged to have dealt blows with Garasa. They also gave a blow with Garasa on the head of the deceased Ekadashi Devi as a result of which she became injured and fell on the ground. She was shifted to Kudra Hospital from where she was referred to Sadar hospital where the fardbeyan of the informant, Ext-7 was recorded, on the basis of which, Ext-2, the FIR of the case was drawn up so as to investigating the case, which ended in the submission of the chargesheet against eleven accused persons who were put on trial out of whom nine were acquitted and the two appellants stood convicted. 3. Thirteen P.Ws. were examined. The 4 informant as also other eye witnesses stated that while the other accused persons assaulted the informant and other witnesses with their respective weapons, like, lathi, garasa etc these appellant dealt blows with garasa on the deceased. The court below was disbelieving their evidence to that extent in absence of any injury reports of witnesses. As such, this court has a very limited question to decide as to whether the consistency in the oral evidence of P.W.1 and other witnesses indicating that the two appellants had dealt garasa blows on the head of the deceased is acceptable to prove the charges. 4. I have already pointed out that witnesses had consistently deposed that it were the appellants who had dealt garasa blows on the head of the deceased. Thus, the evidence of these witnesses could legitimately raise a presumption that the 5 sharp cutting weapon could have struck the vital part of the body of the deceased, i.e., his head and should have caused an injury which might have resulted out of the assault. In the ordinary circumstances, any court could presume that the injuries which could be caused were incised wounds or could be wounds looking incised or looking as if the same had been caused by some sharp cutting weapon. The difficulty in the present case is that the doctor had not been produced and the witness who tendered Ext-7, the postmortem examination was a storekeeper who was working in Sadar Hospital, Sasaram and was ordered by the Deputy Superintendent of that hospital to carry with him the registers of postmortem reports containing the relevant copy of the original of Ext-7 to produce it in court. He was examined as P.W.14. The postmortem report is dated 31.05.1994 but his own evidence indicates that he was inducted into the 6 medical services and posted as Storekeeper in Sadar Hospital at Sasaram in the year 1998. Thus, it could simply be said that on the day on which the doctor was performing the autopsy, P.W.14 was not present in any capacity in Sadar Hospital, Sasaram. As such, the evidence of P.W.14 appears of no consequence as by no stretch of imagination, he could be said to be present either at the time of holding of the postmortem examination or creation of the original or the other copies of the document by carbon process by the doctor. The witness has himself been very forthright in admitting that the postmortem examination report was never written in his presence. He has stated that the doctor, namely, Dharmdeo Singh was posted at the time he was inducted into the service but the postmortem examination was never seen by him. As such, the secondary evidence that the prosecution was leading for bringing the 7 record Ext-7 as part of evidence recorded by the trial court was simply not admissible as per the provisions of Section 63(5)of the Evidence Act. The other provision for admitting such a document could be the provision of Section 68 of the Evidence Act, but again none of the clauses of that particular Section could make Ext-7 an admissible evidence so as to be considered as a valid evidence for supporting or recording any finding. If this could be the view of the court then the court has no hesitation in recording that there was complete absence of evidence as to what was the weapon which was used in dealing with the blows to the deceased to cause any injury to his head, if at all the blows were given by the weapon which is alleged by the prosecution to hit the part of the body was alleged to be really hit. I have pointed out a bit earlier that presumption has to be that the sharp cutting 8 part of the weapon could be hitting the body alleged to be hit and could be assumed to have caused as injury appearing either incised or sharp cutting in nature. Even the inadmissible document Ext-7 does not support this presumption as there were two lacerated wound caused by hard and blunt substance recorded in is by the doctor. 5. Inconsistency between the oral and medical evidence is not always fatal, but as and when it completely improbablises the manner of occurrence then it has a deep bearing on the proof of the charges. 6. Considering the evidence in that light, I have no hesitation in holding that the trial Judge has erred heavily on recording a finding that the manner of occurrence was established though the offence of which the two appellants were charged had not been established rather an offence under Section 304 Part-II appeared constituted by 9 facts. In fact the prosecution had failed in establishing the charge as it has not succeeded in establishing and proving the manner of occurrence. On this line of reasoning I could allow the appeal of the two appellants by setting aside the order of conviction and sentence passed upon each of them and further directing them to be acquitted. Accordingly, they are acquitted. If the appellants have not yet been released from custody, both of them shall be released forthwith, if not wanted in any other case. 7. Sri S.N.Prasad, learned Amicus Curiae has assisted this Court and he deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee. For this purpose, let a copy of the first and the last pages of the judgment be made over to him. Patna High Court, Dated, the 25th day of July, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)