1 Criminal Appeal (SJ) No.13 OF 1994 - - - - Against the Judgment of conviction and order of sentence dated 21.12.1993 passed by the Additional Sessions Judge-X, Gaya, in Sessions Trial No. 329 of 1987/147 of 1991. - - - - 1. LAKHAN SINGH, son of late Jagdeo Singh 2. Adya Singh, son of late Jagdeo Singh 3. Vidya Singh, son of late Jagdeo Singh All residents of Village Dhakner, Police Station Paraiya, District Gaya … … Appellants Versus 1. THE STATE OF BIHAR 2. Badri Singh son of Bhim Singh resident of Village Dakhner, P.S. Paraia, District Gaya … … Respondents For the appellants: Shri Sudarshan Shankar,Adv. For the State: Shri Ajay Mishra, A.P.P. - - - - P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- Six accused persons including the three appellants were put on trial by the learned Additional Sessions Judge-X, Gaya, in Sessions Trial No.329 of 1987/147 of 1991 by framing the charges under different heads, individually and jointly. The learned Judge delivered the judgment of conviction on 21.12.1993 and found the three appellants guilty while the remaining three accused persons were acquitted. Appellants Lakhan Singh and Adya Sigh were found guilty of committing the offence under Section 324 of the Indian Penal Code and each of them was directed to 2 suffer rigorous imprisonment for six months whereas appellant Vidya Singh was convicted under Section 323 of the Penal Code and was let off on due admonition. The appellants have appealed against the judgment of conviction and order of sentence before this Court. 3. The prosecution story is contained in Ext. 1/1, the F.I.R. of the case, lodged by the informant Badri Singh in which it was stated that appellant Lakhan Singh was grazing the paddy field of P.W. 4, the informant, by buffaloes and calves. The animals were captured by P.W. 4 with the aid of P.W. 3 Arvind Sharma so as to be taken to cattle pond. Appellant Lakhan Singh raised an alarm upon which the six accused persons named in the F.I.R. came there armed with bhala, garansa, etc. It is alleged that appellant Lakhan Singh dealt a Garansa blow on the head of P.W. 4, but he was hit on his nose and some scratches were caused. Appellant Adya Singh is said to have given bhala blow in the thigh of P.W. 3 Arvind Sharma. It was further alleged that P.W.4 was assaulted with lathi by appellant Vidya Singh on his leg as a result of which he fell down. The appellants after assaulting P.Ws. 3 and 4 rescued the animals to take them to their house. P.W.1, Sheonandan 3 Singh, P.W. 2 Lalji Singh, Deonandan Singh( not examined) and P.W. 6 Raj Kumar Mishra also reached at the scene of the occurrence and saw it. 4. It appears that the investigation of the case was conducted by S.I. Ashok Kumar Singh, P.W. 7. It further appears from the evidence and the documents that there was a counter version of the occurrence also in the form of Ext.A which was the F.I.R. instituted on the statement of Vidya Singh, appellant No.3 who alleged that the animals of the informant and others were grazing in the orchard of appellant Vidya Singh which was objected to upon which the informant and others stated that they would get the whole of the orchard grazed and destroyed. That gave rise to an altercation upon which the witnesses, like, P.W. 1 Sheonandan Singh, P.W. 3 Arvind Sharma, P.W. 4 Badri Singh and two sons of P.W. 2 Lalji Singh arrived there with weapons and assaulted both the appellants Adya Singh ad Vidya Sigh. The evidence of the Investigating Officer indicates that there were two places of occurrence which were recorded by him during the course of investigation. It is further stated by P.W.7 in his evidence that he had issued two injury reports and sent the injureds to the hospital for treatment and after 4 completing the investigation submitted charge sheet. 5. The learned trial Judge did not find sufficient evidence to sustain the charge under Section 307 of the Indian Penal Code and in spite of noticing the fact that there was a counter version and injuries were also present on the persons of appellants Adya Singh and Vidya Singh and further that there was admission of P.Ws about the lodging of a counter case, went on to convict the appellants as indicated above. 6. It was contended that the relationship of the witnesses is admitted by P.W. 3 Arvind Sharma in his evidence in paragraph 15 wherein it has been admitted by P.W. 3 that P.W. 4 was his cousin and Lakhan Singh was related as uncle to him and Lalji Singh, P.W. 2 has admitted that he was uncle of P.W. 4 and it is admitted in the F.I.R. itself that P.W. 3 was the cousin of the informant Badri Singh, P.W. 4. It also appears from the evidence of P.W.3 in paragraph 15 that there were two groups in the village- one led by Badri Singh and the other by the appellants. This is the background in which the evidence of the witnesses has to be appreciated. 5 7. P.W. 3 Arvind Sharma has admitted in paragraph 31 of his evidence that he could not say as to on which part of the persons of appellants Adya Singh and Vidya Singh the injuries were there but he had seen Vidya Singh in the hospital. In his cross-examination in paragraph 32 the witness stated that the two injured were not in the hospital and after getting himself treated by the doctor he came to the Police Station and thereafter the appellants also came there and lodged the report. Admission is further coming from the evidence of P.W. 3 in paragraph 33 that a counter case was there in which, besides P.W. 3 the informant, P.W. 4 Mahesh Singh, Bindi Singh, Ram Pravesh Singh, Uday Singh, Deonandan Singh and Sheonandan Singh(P.W.1) were accused. 8. The allegation is that P.W. 4 was assaulted by Lakhan Singh with Garansa and injuries on his nose were caused. But, if one perused the evidence of P.W. 4 in paragraph 13 it would appear that he had fallen down and had received injuries on his nose and considering the above statement in the light of the evidence of P.W. 5, Dr. Sheo Bachan Singh one could find that the story of appellant Lakhan Singh giving a blow with garasa on P.W. 4 may not be acceptable as two abrasions of ½”X 6 ¼”over the nose were recorded. P.W. 5 has stated that the injuries except injury no.1 could be caused by hard and blunt substance. 9. The learned trial Judge has recorded that there were injuries on the persons of the appellants also. This fact appears recorded in the light of the evidence of the Doctor Sheo Bachan Singh which evidence has been discussed in detail by the learned trial Judge and the basic documents, like the injury reports issued by D.W.3 are available in the form of Exts. A and A/1. On the person of appellant Adya Singh the Doctor found one grievous injury which was the dislocation of the upper left central incisor and the reported dislocation was on account of a blow given by hard and blunt substance. For the above noted injury, the patient was advised X-Ray so as to giving final opinion by the Doctor. On the person of Vidya Singh there were three injuries and those injuries were caused by hard and blunt substance. On perusal of the evidence of the witnesses what appears is that they have not stated as to how those injuries happened to be on their persons. There was a counter version also of the case and the same was lodged simultaneously at the Police Station with the present case. Not only 7 that, the presence of appellants Adya Singh and Vidya Singh also at the hospital may raise a probability that they had been at the hospital for getting themselves treated as a result of which Exts. A and A/1 were issued and thereafter they had come at the Police Station. 10. Where there is a case and counter case and there is no explanation coming from the prosecution witnesses as to how the accused persons happened to have injuries on their persons, the court has to assume that the witnesses were making false statements on the most material point. It may further be assumed that they were concealing the true facts as to how the occurrence had taken place and if these presumptions are available, then it may be creating serious doubt in the veracity of the prosecution case entitling the accused to acquittal. 11. Considering the absence of any explanation and considering the fact that the occurrences were simultaneously taking place and blood was also found by P.W.7, the Investigating Officer, at one of the places of occurrence of the defence story I find that it was a fit case in which benefit of 8 doubt ought to have accrued to the appellants and they should have been acquitted on that account. 12. Accordingly, the appeal succeeds, the judgment of conviction and order of sentence are set aside and all the three appellants are acquitted. 13. The appellants are on bail they shall stand discharged from the liabilities of their bonds. ( Dharnidhar Jha, J.) Patna High Court The 7th April, 2011 Kanth/N.A.F.R.