CRIMINAL APPEAL No.287 OF 1993 Against the Judgment of conviction and order of sentence dated 28th August, 1993 passed in Sessions Trial No. 174 of 1987 by Sri P. K. Sarkar, Sessions Judge, Gaya. ******* 1. MANOJ BAID S/O SHEONANDAN BAID 2. SHEONANDAN BAID S/O BHP NATH BAID BOTH RESIDENT OF VILLAGE- CHUABAR, P.S.- IMAMGANJ, DISTRICT- GAYA ………………………………………….APPELLANTS Versus STATE OF BIHAR ……………………………………. RESPONDENT ************** For the Appellants :- Miss. Fauzia Shakil, Advocate For the State :- Mr. Ali Mozaffar, APP ****************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S. K. Sharma, J. Above named appellants have preferred the instant appeal against the judgment of conviction and order of sentence dated 28th August, 1993 passed in Sessions Trial No. 174 of 1987 by the learned Sessions Judge, Gaya by which the appellants were convicted under section 307 of the Indian Penal Code and each were sentenced to undergo rigorous imprisonment for three years and also to pay fine of Rs. 1,000/- and in default of payment to undergo rigorous imprisonment for six months. Further the appellants have been convicted under section 27of the Arms Act and sentenced to undergo rigorous imprisonment for three years. All the sentences were ordered to run concurrently. The prosecution case has resulted on the basis of fard-beyan 2 of Santan Baid which was given before the Imamganj police station in which it was alleged that at 10.00 A.M. on 25.6.1988 the informant’s father suddenly felt pain in his stomach and when the informant’s father began cry then Manoj Baid son of Sheonandan Baid got up on the boundary wall dividing the courtyard of the accused and started laughing. The informant’s mother protested against laughing by saying that in distress how the accused persons were laughing. She also stated that the bad times traveled from one place to other place and no body shuld laugh. This infuriated Manoj Baid and he started abusing and when the informant’s mother protested then the appellant Sheonandan Baid came and he also joined the company of his son. The appellants went inside the house and brought country made pistol and started indiscriminate firing. The firing resulted into the injury of the informant and his father and bleeding started. The firing made by Manoj Baid injured the informant’s sister Sheorani Devi, Sister’s son Umesh Kumar and brother’s wife Sunita Devi. When the alarm was raised then Sheo Kumar Singh, Arjun Mistry and many other villagers came and witnessed the occurrence. Enmity and quarrel which has taken earlier was the motive of the occurrence. The informant informed the Kochiya Guard and the constable came and caught the accused Sheonandan Baidh who was produced before the police. The information has resulted into the registration of FIR which was registered under sections 323, 324, 448 of the Indian Penal Code and section 27 of the Arms Act. After investigation Chargesheet was submitted under sections 323, 307 of the Indian Penal Code and section 27of the Arms Act. Cognizance 3 was taken and the case was transferred for commitment. After observing Paraphernalias the case was committed to the court of Sessions where the charges were explained to the appellants when they pleaded innocence then the trial proceeded. The prosecution in order to prove its case examined ten witnesses. They were Sheorani Devi (PW 1), Madheshwar Baid (PW2), Umesh Kumar (PW3), informant Santan Baid (PW 4), Manoj Kumar Mishra (PW 5), Rameshwar Singh (PW 6), Sunita Devi (PW 7), Nagendra Baid (PW 8), Abika Prasad Singh (PW 9) and Rajendra Prasad Pandey (PW 10). PW 5 was tendered. PWs 6 and 10 are formal witness. PW 9 is the I. O. of the case. The informant has been examined as PW 4. The FIR mentioned the name of three eye witnesses but they were not examined. In course of the evidence the prosecution has not given any explanation as to why those witnesses who are stated to be the persons who have witnessed the occurrence were not examined. The doctor was not examined and the injuries were not formally proved. The informant PW 4 has stated that on 25.6.1986 at 10.20 AM while he was in his courtyard and other inmates of the house were also there then they were weeping and seeing the condition of his father the accused persons were laughing. The informant’s mother protested that the accused persons were laughing, thereafter, Manoj Baid started abusing In the mean while Sheonandan Baid also came and both the accused persons started indiscriminate firing. The splinters caused 4 injury to the informant, his father, Umesh kumar, Shanti Devi and Rani Devi. The villagers assembled there and witnessed the occurrence and while the informant was going to police station then the accused persons restrained the informant and any how the informant escaped and went to the police station. The police came and caught the appellants Sheonandan Baid. The fard-beyan of the informant has resulted in registration of formal FIR (Ext-1). Other documents relied upon by the prosecution are requisition slips (Ext-2 and 2/4). Productions Slip (Ext.-3) and injury reports (Exts. 4 to 4/4). In cross-examination suggestion was given to the informant that as to why the independent witnesses were not produced and the blood stain cloth was not produced before the police. Suggestion was also given that there was no injury at all and the entire reports were concocted. Although there was definite case of the prosecution that the blood sprinkled on the soil but the soil was not seized and it was suggested to the informant that the evidences with regard to falling of blood on the earth was false. Though the informant has tried to defend his evidence in course of chief but some important lacuna remained in his evidence that as to why the blood stain cloths were not given to the police when the police has arrived at the place of occurrence just after the occurrence. PW 1 is another witness to the occurrence. He has supported the evidence of PW 4 but has given slight twist and has stated that Manoj Baid has handed over the pistol to Sheonandan Baid which fact has not been stated in the evidence of the informant PW4 5 and in his fard-beyan. PWs 2 and 3 have also supported the prosecution evidence but there are some vital contradictions with regard to the place of occurrence and manner of assault. The contradictions are with regard to the seizure of the blood which was not done by the I. O. The I. O. has been examined as PW 9 and he has not explained as to why the blood was not seized. If the prosecution was having a case that the informant and other witnesses were injured then it was for the prosecution to prove its case beyond all reasonable doubts. The definite case of the prosecution was that on the date and time of occurrence there were assault by the appellants by use of fire arms in presence of villagers and three independent witnesses witnessed the occurrence. Those independent witnesses remained illusive in course of trial and their non-examination creates doubt on the prosecution version and the occurrence. In cases of doubt the evidences have to be scrutinized strictly. If it is the case of the prosecution that independent witnesses were present then there evidences becomes very important and this principle has not been followed in this case. Non-bringing the independent witnesses creates doubt over the entire prosecution story. Another doubt on the prosecution version becomes the non-examination of the doctor. The definite case of the prosecution suggest that injured were treated by the doctor but the injury report has not been proved by the doctor. In absence of the doctor no opinion could be drawn with regard to the nature of the injury. In absence of the doctor quantum of injuries can 6 also not be ascertained. In absence of doctor it is difficult to prove the charge under section 307 of the Indian Penal Code. In the present case occurrence suggests that there were injuries. Had the prosecution case been that there was no injuries then also conviction can be sustained under section 307 of the Indian Penal Code. Even if only intention is present and firing was resorted and there was no injury even then the conviction under section 307 of the Indian Penal Code can be up-held but definite case of the prosecution is that the injuries were there and non-examination of the injury will definitely go against the prosecution. On account of withholding of the independent witnesses, non- examination of the doctor and other vital contradictions in the evidences of the witnesses, I am of the view that the prosecution has not been able to prove its case beyond all reasonable doubts. In view of the doubts the prosecution case cannot be sustained and the benefit of doubt will go the defence. Accordingly, the appellants are held not guilty and the impugned judgment of conviction and sentence is set aside. In the result this appeal is allowed and the appellants are discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J.) Patna High Court, 7th August, 2009 N.A.F.R./avin