CRIMINAL APPEAL No.192 OF 1993 ---- Against the judgment of conviction dated 10.2.1993 and sentence dated 11.2.1993 passed by Sri Devi Dayal Prasad,5th Additional Sessions Judge,Purnia in Sessions Trial No. 371 of 1990. ---- Harda Mandal alias Hardeo Mandal …. Appellant Versus The State of Bihar ….. Respondent ---- For the appellant : Mr.Jagdish Prasad Bhagat For the State : Mr.Ali Muzaffar,Addl.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ----- S.K.Sharma,J. The appeal on behalf of the sole appellant Harda Mandal alias Hardeo Mandal is against the judgment passed by 5th Additional Sessions Judge, Purnia in Sessions Trial No. 371 of 1990 by which he has been found guilty under Section 307 of the Indian Penal Code and was convicted on 10.2.1993 and sentenced on 11.2.1993 thereunder to undergo rigorous imprisonment for five years. The case was registered on the basis of fardbeyan of Punai Rajak (P.W.4) at his house on 21.8.1989 at 11.30 P.M. in which he alleged that at about preceding 7.30 P.M. he was coming alone to his house from Dumri Hat and when he was at the distance of about 15 yards from his house he 2 sat for urinal discharge. Suddenly, he noticed some movement behind him and found that he was fired upon from his back. He received injury on account of that. Then, he flashed his torch and saw the appellant fleeing away with three-not- three. At that time, 3 to 4 persons were also noticed who also came for the purpose of killing the informant. Prior to the occurrence, one Upendra Mandal had threatened the informant saying that he was behind the killing of one Sikandar Mandal. Other two persons i.e. father of Sikandar Mandal and Ram Kishun Mandal were also named by the informant who threatened the him. It was also stated in the fardbeyan that accused Harda Mandal is member of gang of Upendra Mandal. On the basis of the fardbeyan of the informant, Rupauli P.S.Case No. 133 of 1989 under Sections 307 and 324/34 of the Indian Penal Code and 27 of the Arms Act was registered. The matter was investigated into and after completion of investigation, charge sheet was submitted under Sections 307 and 326/34 of the Indian Penal Code and 27 Arms Act against the appellant and one Ram Kishun Mandal. Cognizance was taken and the case was committed to the court of Sessions. Trial 3 proceeded. Charges under Section 307/34 and 326/34 of the Indian Penal Code were framed against both the accused. Charges were explained to the accused persons who pleaded innocence and faced the trial. The defence of the accused persons was of false implication on account of previous enmity. Other defence was that no body had received any injury and the injury as alleged was fabricated. The informant was not examined by any doctor. It is absolutely unbelievable that if a person received injury of fire arm, he will remain sitting at his house and wait for arrival of the Officer-in-charge for recording the statement. In order to prove its case, the prosecution examined 10 witnesses. P.W.1 is Most. Kari Devi who is mother of the informant. P.W.2 Maheshwar Yadav who turned hostile. P.W.3 is Mannu Rajak, brother of the informant. P.W.4 is informant Punai Rajak. P.W.5 is Sita Devi, wife of the informant. P.W.6 is Sikandar Rajak and P.W.7 is Rajendra Yadav, both of them have turned hostile. P.W.8 is Ram Mistri. P.W.9 Sarva Nand Singh is the Investigating Officer of this case and P.W.10 is Subhankar Pathak who has 4 merely proved injury report (Ext.3). Besides the appellant, one another accused Ram Kishun Mandal also faced trial but he has been acquitted by the trial court. P.W.4 informant Punai Rajak in his evidence has stated that at about 7.00 P.M. on 21.8.1989 when he was urinating near his house, he was fired upon. He received injury in his back portion of left arm. The informant flashed his torch and saw the appellant and one Gurudeo Mandal. On hulla, family members came and the informant was brought to his house. The Officer- in-charge came at informant’s house and fardbeyan was recorded at 11.00 P.M. Thereafter, the informant was taken to Tikapatti hospital and after some treatment, he was taken to Rupauli hospital and he remained there about 20-25 days. The informant in his cross-examination has stated that after receiving fire arm injury, he lost his consciousness and when he regained his consciousness at Rupauli, he gave his statement. Vital contradiction has appeared in the evidence of the informant P.W.4. if it is compared with his fardbeyan. No doubt, fardbeyan is a substantive piece of evidence but it has to 5 be taken into consideration for ascertaining the truth. The informant in his fardbeyan has stated that the occurrence took place at 7.30 P.M. but he in his evidence stated that the occurrence took place at 7.00 P.M. Thise difference is not vital. In the fardbeyan, the informant had stated that when he was fired upon, he saw the appellant and three others but in his evidence, he has stated that he saw only the appellant and one Gurudeo Mandal. The informant has stated nothing as to what type of weapon the appellant was having when his evidence was recorded in court. He has stated in his evidence that he has merely seen the appellant escaping and that too without fire arm. Another vital contadiction is that according to the Investigating Officer fardbeyan was recorded at his house at about 11.30 P.M. but the informant in his cross- examination has stated that he lost his consciousness after receiving injury and he regained his consciousness in Rupauli hospital and thereafter he gave his statement. This is the vital contradiction as to where actually fardbeyan was recorded. P.W.1, mother of the informant, has 6 stated in her evidence that she had seen the appellant escaping in torch light but in her cross-examination, she has stated that she is a patient of cataract and having poor visibility. She has also stated in her evidence that on the day of occurrence, there was a dark night and at that time, she was sitting in her house and when she heard sound of firing, she saw the appellant and another accused escaping. It is hardly believable that a person of patient of cataract like P.W.1 will identify the persons in a dark night. P.W.2 in his evidence has stated that when he went to the informant, then the informant did not say anything to him. Naturally this witness was declared hostile. P.W.3 has stated that he saw the appellant and other accused persons escaping. He also stated in his evidence that he saw his brother, informant, in injured condition and thereafter he was brought to his house. He has stated in his cross examination that he had seen the appellant from a distance of 50 to 60 steps at the time of escaping. According to this witness, he has not seen the firing by the appellant. P.W.5, wife of the informant, has stated 7 that she had seen her husband in injured condition and thereafter she brought him to her house and thereafter taken to hospital. In her cross-examination, she has stated that at the time of alleged firing, she was in her house and after occurrence she saw the accused persons escaping towards north. She has stated that she had identified the accused persons in torch light but at that time she was not having any source of identification. As such, her evidence is not reliable as she has not seen the occurrence. P.Ws.6 and 7 have been declared hostile. P.W.8 is the person who had gone to the house of the informant and had seen the informant in injured condition and unconscious. After scrutinizing the entire evidences, it came to no that no injury report has been brought on the record and non-examination of the doctor, it cannot be said that as to what type of injury the informant had received. Whether any injury was caused to the informant or not has also remained unexplained. Non-examination of the doctor for proving the charge under Section 307 of the Indian Penal Code can be said to be fatal. There are vital contradictions in the evidence of 8 informant itself who had given different statement of different type. At one time, he has stated that he has given the fardbeyan at his house and at other place, he has stated that he had given statement at Rupauli hospital. Taking into consideration the contradictions, it cannot be said that the prosecution has proved the charges. Accordingly, I am of the view that the prosecution has not been able to prove the charges beyond all reasonable doubts and as such the appellant is entitled to be given the benefit of doubt. In the result, this appeal is allowed and the judgment of conviction and sentence is set aside. The appellant is also discharged form the liability of his bail bond. ( Shyam Kishore Sharma, J. ) Patna High Court, Patna The 5th February,2008 Tahir/-(NAFR).