Against the judgement of conviction and order of sentence dated 30.9.2004 and 5.10.2004 passed by Additional Sessions Judge(Fast Track Court No.II), Aurangabad in Sessions Trial No.40 of 1989/136 of 2003. CRIMINAL APPEAL (DB) No.839 of 2004 LALA DUSADH---------------------------Appellant Versus STATE OF BIHAR------------------------Respondent With CRIMINAL APPEAL (DB) No.821 of 2004 1. RAMRAJ DUSADH 2. SATROGHAN DUSADH @ SHATRUDHAN DUSADH---Appellants Versus STATE OF BIHAR-------------------------Respondent With CRIMINAL APPEAL (DB) No.824 of 2004 KRISHNA DUSADH-------------------------Appellant Versus STATE OF BIHAR-------------------------Respondent With CRIMINAL APPEAL (DB) No.720 of 2004 RAGHURAJ DUSADH @ RAGHUNANDAN DUSADH---Appellant Versus STATE OF BIHAR-----------------------Respondent ------ For the appellants:- Sri Rana Pratap Singh, Sr.Advocate, Smt. Soni Srivastava, Advocate, Sri Aaruni Singh, Advocate (Cr. Appeal Nos.720 of 2004 & 821 of 2004) Sri Chitranjan Sinha, Sr.Advocate, Smt. Soni Srivastava, Advocate Sri Anjani Kr. Jha, Advocate Sri Priya Gupta, Advocate, (Cr. Appeal Nos.824 of 2004 & 839 of 2004) For the State:- Sri Ashwini Kumar Sinha, A.P.P. For the Informant:- Sri Krishna Prasad Singh,Sr.Advocate. P R E S E N T THE HON'BLE JUSTICE SMT MRIDULA MISHRA THE HON’BLE SRI JUSTICE DHARNIDHAR JHA - 2 - Mridula Mishra & Dharnidhar Jha,JJ. All four appeals arise out of the judgment and order of sentence dated 30.9.2004 passed by Additional Sessions Judge, Aurangabad, Fast Track Court No.II in Sessions Trial No.40 of 1989/136 of 2003 whereby appellants have been convicted for an offence under Section 302/149 of the I.P.C. and sentenced rigorous imprisonment for life as also a fine of Rs.5,000/- and in default rigorous imprisonment for seven years. The appellant, Lala Dusadh has further been convicted for offence under Section 27 of the Arms Act and sentenced rigorous imprisonment for three years. 2. The F.I.R. of Aurangabad(M)P.S.Case No.568 of 1984 was instituted on the basis of statement of deceased Sumair Singh alias Sumair Narain Singh. The case of the prosecution as given in the fardbeyan of the informant is that informant was returning to his village from Aurangabad market in the evening along with his son, Kaushlendra Kumar Singh(P.W.1) and a teacher Kailash Singh Yadav(P.W.4). As soon as they reached near the canal of the Gajadhar bigha village, the accused namely, Lala Dusadh armed with gun, whereas, accused Sohan Dusadh and Krishna Dusadh armed with garasa and remaining appellant, namely, Shatroghan Duadh, Ramraj Dusadh and Raghunandan Dusadh armed with lathi came there. It is alleged that accused, Lala Dusadh exhorted to kill the - 3 - informant/deceased and fired two shots from his gun which hit in the stomach of the informant and he fell down. The other accused persons also started assaulting with Gadasa and lathi. The informant raised an alarm upon which the villagers came there. Having seen the assemblage of the villagers, the accused persons fled away towards their village inflicting several injuries to the informant Sumair. The informant/deceased received fire arm injury and the injury inflicted by garasa and lathi in his stomach and other parts of the body and also on his back. His family members and villagers, thereafter, carried him to Sadar Hospital Aurangabad for treatment where his fardbayan was recorded at 07.30 P.M. by Quasim Khan, SI of Aurangabad (M) P.S. and on that basis Aurangabad (M) P.S. Case No. 568 of 1984 was instituted u/s 147, 148, 149, 323, 307 IPC read with 27 Arms Act. The informant was referred by the doctor at Aurangabad hospital to Gaya considering his serious injuries. The P.W. 1 (informant’s son) and P.W.4 were carrying him to Gaya hospital but he died on way to Gaya at Sherghati at about 10.30 P.M., as such informant and P.W.4, brought the deceased to Aurangabad hospital at 12 P.M. and for the whole night, they remained at the hospital but no information was given to the police in the night till next morning. Subsequently, the police came to the hospital on - 4 - 31.12.1984 at 9 A.M. in the morning and the inquest report was prepared in the hospital itself. Section 302 IPC was added in the FIR by the order dated 04.01.1985. The case was investigated by P.W.5 and chargesheet submitted against all named accused persons. Finally, the case was committed to the court of Sessions for trial and all accused persons faced trial since they all pleaded not guilty. Their defence was of innocence and false implication due to enmity, at the instance of prosecution witness. 3. The prosecution examined seven witnesses in order to prove the charge framed against the accused persons. Kaushlendra Kr. Singh, PW 1 is the son of the deceased informant, who claimed to be the eye witness of the occurrence. Kailash Singh Yadav, P.W 4 is a teacher, who was also examined as eye witness. P.W.2 Jamuna Singh, who is the brother of the deceased also deposed as an eye witness. The name of Kaushlendra Kr. Singh and Kailash Singh Yadav is mentioned in the FIR as the persons accompanying the informant but so far P.W.2 is concerned, there is no reference of his presence, at the place of occurrence in the FIR. P.W.3 Dharmadeo Singh is a hearsay witness. P.W.5 is Kasim Khan, SI Aurangabad (M) P.S. who investigated the case and submitted chargesheet. P.W.6 Dr. Narain Pandit had conducted the postmortem on the - 5 - dead body of the deceased and submitted postmortem report (Ext-8). P.W.7 is the formal witness who was tendered to prove the complaint-cum-protest filed by the P.W.1 Kaushlendra Kr. Singh, making a complain that the investigating officer is not investigating the case properly, being influenced by the accused persons. 4. Two witnesses were examined by the defence in support of the plea of Alibi taken by accused Raghuraj. D.W.1 Bishundeo Ram, posted as civil Jamadar in the police line, Gaya in the year 1984, has been examined in support of the alibi taken by Raghuraj. D.W.2 Ram Babu has also given evidence on the same point as D.W.1. 5. These four appeals were argued by two sets of counsels. Appellants in Cr.Appeal Nos.720 of 2004 and 821 of 2004 were represented by Sri Rana Pratap Singh, Senior Advocate and appellants in Cr.Appeal Nos.824 of 2004 as well as 839 of 2004 were represented by Sri Chitranjan Sinha, senior Advocate. Counsels representing all appellants have assailed the legality of the impugned judgement on similar grounds. 6. The first ground taken for assailing the conviction of the appellants by the trial court, is the credibility of the so-called fardbeyan of deceased Sumair Singh alias Sumair Narain Singh, treated by the trial court as dying declaration of the informant. The counsels - 6 - for the appellants have contended that fardbeyan of Sumer Singh was not recorded at the hospital, since it is evident from the deposition of the witnesses that after receiving injuries, he became unconscious and never regained consciousness. 7. Counsels for the appellants in support of their plea that fardbayan/dying declaration of the informant of the deceased-informant is not a genuine document, have submitted that the evidence and circumstance, coming forward in the deposition of the witnesses, if analyzed, it is apparent that the fardbayan of Sumer Singh, is a manufactured and ante-dated document. 8. Truthfulness of the witnesses, P.W.1, P.W.2 and P.W.4 has also been questioned. P.W.1, P.W.4 and P.W.2 have claimed themselves to be eye witnesses to the occurrence. Their case is that all of them were accompanying the informant, while he was coming from Aurangabad to his native place on a bicycle. It has come in their evidence that the informant was on his bicycle ahead of all, following him, P.W.1 was on another bicycle. P.W.4 and P.W.2 were behind P.W. 1 on their own bicycles. Suddenly, accused persons appeared, Lala Dusadh fired at the back of the informant and he fell down from his bicycle. He tried to run away for some distance. - 7 - Thereafter, Lala Dusadh came in front of the informant and he fired again at his abdomen. This part of the prosecution story, regarding firing by Lala Dusadh at the abdomen of deceased, coming in front of him, is a subsequent development, which was not disclosed in the first information report. P.W.1, P.W.2 & P.W. 4, all have come out with a story in order to explain the reason for their presence at Aurangabad, in accompanying the deceased and to give credibility to their presence at the time of the occurrence. P.W.1 has stated that he had gone to Aurangabad and met with his father while sitting at a shop. His father handed over him a bag for keeping with him in which there were some government papers and Rs. 10,000/- which was the government money. His father himself went to purchase vegetables. His father came with vegetables and he started for the village with his father. On way to their village, the occurrence took place. P.W.4 has stated that he had gone to purchase some vegetables, where he met with the deceased and P.W.1 and accompanied them, while returning to the village. Similar is the story of P.W.2. There is no reference of these stories in the F.I.R. The witnesses have developed this story and also introduced cycles, on which they were coming to their village with the deceased. In order to explain the disappearance of cycles from the place of - 8 - occurrence, as Investigating Officer did not find any bicycles or bag containing money, another story was developed to fill this lacuna. Further development was that the accused persons took away their bicycles, while fleeing away towards east, after committing the offence. The development in prosecution case was introduced by all three witnesses, in order to explain their presence, but that has completely been contradicted by the P.W.5 I.O. of the case. He has denied that any of these witnesses have made such statement u/S 161 Cr.P.C., during investigation. P.W. 5, has stated in his evidence that P.W. 4 had made a statement that he was not present at the P.O., Investigating officer did not find vegetables purchased by deceased and witnesses scattered at the P.O. Counsels for the appellants have emphasized that, in fact no one was present at the time of occurrence, no one has seen the occurrence, but a story has been concocted to implicate persons who were inimical to them. 9. Challenging the genuineness of Fardbeyan, it has been submitted, that the evidence of the Doctor, P.W.6, as well as P.W.1, P.W. 2 and P.W.3 is sufficient to indicate that deceased had received serious injuries on vital parts of his body. Witness have stated that the fire arm injuries as well as other injuries received by - 9 - the informant, was very serious, intestine and part of the abdomen had come out, P.W.2 has claimed that he wrapped the towel around the abdomen of the informant in order to give some instant relief. P.W.4 and P.W.1 have also supported so far as the seriousness of the injury of the informant is concerned, P.W. 6, the doctor in his evidence has stated that on dissection of the abdomen, he found large and small intestine lacerated and punctured. There were nine injuries on the person of the deceased. Any person after receiving such injury cannot make a long, detailed statement for the purposes of recording fardbeyan to institute a case. Counsel for the appellants submitted that in fact fardbeyan was not recorded at the Hospital at 7.30 P.M. on the date of occurrence but on the next date. The concocted document was prepared by anti dating it. P.W.1 has even stated in his evidence that his father was badly assaulted with lathi by the accused persons as well as other parts of the body. 10. In support of their contention that fardbeyan is concocted document, the counsel for the appellants have specifically drawn attention towards the thumb impression of the informant at his fardbeyan. When the informant was a science graduate and working in the Revenue Department of the State, as disclosed by P.W. 2 - 10 - in his deposition. There was no injury found by the doctor on the right hand of the deceased. P.W. 6 had found eight lacerated wound scattered on the left arm an interior aspect measuring about 1/8” and a lacerated would with inverted margin and charring round about wound in the laternal aspect 1” x ½” x cavity deep. Since there was no injury on the right hand of Sumer Singh, no reason for not signing the fardbayan. The informant if could have narrated the prosecution case, despite his serious injury in abdomen and head, he could have very well signed at his fardbeyan. But his missing signature, puts a question mark on genuineness of fardbeyan. 11. P.W.1, being aware of this lacuna, tried to introduce several injuries at the right hand of the deceased, in his deposition, stating that accused persons repeatedly assaulted his father with lathi at his right hand. This deposition is contradicted by the post-mortem report as well as deposition of P.W.6. In such a circumstance, there was no reason for not signing the fardbeyn by the informant. Since, the prosecution failed to explain it, an adverse inference could have been drawn so far genuineness of fardbeyan is concerned. 12. Counsel for the appellants has submitted that the evidence of the witnesses disclosed that the fardbeyan of the informant was recorded at 7.30 P.M. at - 11 - Aurangabad hospital. The I.O. P.W.5 in his evidence has disclosed that within half an hour, he recorded the fardbeyan of the informant, prepared his injury report, immediately, thereafter, he came to the police station and sent the recorded fardbeyan for institution of the FIR to Aurangabad town police station as the occurrence has taken place within the jurisdiction of that police station, everything was done by P.W. 5 in such haste but, the F.I.R. was presented before the Magistrate, after two days of its institution. It was received by the Magistrate on 2.1.1985. This delay in production of the F.I.R. before the Magistrate, has not been explained and it creates a doubt that whether fardbeyan was recorded on 30.12.1984 at 7.30 P.M. and as claimed by the prosecution, same day an F.I.R. was instituted at the concerned police Station or it was recorded subsequently, by ante-dating. 13. Another reason for creating doubt against the genuineness of the fardbayan, is that the police officer recording the statement of the informant did not obtain the signature of any of the witnesses who were allegedly present at the time of the recording of the FIR. The son of the informant P.W. 1 was present at Police Station. P.W.2, brother of the deceased who claimed to be an eye witness of the occurrence and also accompanying his - 12 - brother from Aurangabad, claims to be present at the police station, at the time of recording of fardbayan. Despite presence of two family members and other villager, P.W.4 signature of not a single witness was taken on fardbeyan. P.W.1 admitted in paras- 25 to 29 of his deposition that he was present at Aurangabad hospital at the time when fardbayan was recorded but he did not sign the fardbayan as a witness. No reason has been shown for such reluctance on the part of the prosecution witness 14. P.W.1, P.W. 3 and P.W.4, all have stated that after receiving injury, inormant became unconscious and thereafter he was carried to Aurangabad hospital from where he was referred to Gaya. The counsel for the appellants has submitted that considering the deposition of the witnesses, admitting the serious condition of the informant, it was the legal requirement that before recording the fardbayan of the informant, a certificate from the treating doctor, present at Aurangabad hospital, should have been obtained regarding fitness of his mental condition for making such statement. Counsel for the appellant submits that this was legal mandatory requirement. In support of this contention, reliance has been placed on the decision reported in AIR 1983 SC 554 Darshan Singh & Ors. Vrs. State of Punjab and also AIR - 13 - 1986 SC 250 State(Delhi Administration) Vrs. Laxman Kumar wherein it has been held that while recording a dying declaration, it is essential that a certificate of the doctor present, be obtained in order to certify the mental and physical fitness of the deceased regarding his statement. In case it is not done, the document subsequently cannot be relied upon and taken as a dying declaration of the deceased as a genuine document. 15. In the present case, admittedly the doctor was present at the hospital as disclosed by witness P.W.1 in paragraph-22 of his deposition, where he admits that the doctor after putting bandage on the injuries of his father, gave injection but no saline was administered to him. In this circumstance, ignoring the legal requirement regarding certificate of the doctor about the mental fitness of the informant, if the fardbayan has been recorded, then a big question mark can be put before placing any reliance on such fardbayan and instituting a police case on the basis of such fardbayan. It has also been submitted by the learned counsel for the appellants that if the fardbayan itself is doubtful, then conviction of the appellants on the basis of such prosecution case which is doubtful from its very inception, cannot be considered to be a legal conviction and it is fit to be set aside. - 14 - 16. The further submission which has been made by the counsel for the appellants relates to the trustworthiness of the prosecution witnesses specially P.W.1, P.W.2 and P.W.4. 17. P.W.1 is the son of the informant (deceased). P.W.1 in paragraph-6 of his deposition has admitted his relationship with the deceased and other witnesses. The counsel for the appellants submits that considering his relationship with the deceased, conduct of P.W.1 is most unnatural and unreliable. P.W.1 has deposed in para-17 of his deposition that his father received first fire arm injury from a distance of 10 yards and he fell down. He has deposed that other accused persons assaulted his father with lathi, garasa and other weapons in their hands. He was present there but he did not run towards his father to help him. He remained there as a silent spectator and did not intervene. This has further been admitted by P.W.1 that the accused persons made indiscriminate firing on his father but he silently remained standing and watching there. This conduct of P.W.1 is an unnatural conduct of a son and this raises a doubt whether he was, at all, present at the place of occurrence when it had taken place. The conduct of P.W.1 is also questionable. Considering his evidence, that for the first time, his statement was recorded at police - 15 - station on 31.12.1984 when he was called at police station. P.W.1 in paragraph-25 and 29 of the deposition, has stated that he was present at Aurangabad hospital at the time when the fardbayan was recorded but he did not sign as a witness. This cannot be believed that despite the fact that his father was so seriously injured, the informant did not feel like making any statement regarding the occurrence before the police officer. Though the occurrence was witnessed by him he did not intend to sign the fardbayan as a witness which could have given credibility to the fardbayan for treating it as dying declaration. The attention of P.W.1 was drawn towards his statement at paragraphs-30 and 37 of his evidence that his conduct shows that he was not present at the time of recording of fardbayan and the FIR is a manufactured document though it has been denied but still the doubt persists so far as the present occurrence at the time of recording the fardbayan and during night after the death of his father at Aurangabad hospital is concerned. Deposition of P.W. 1 at paragraph-7 further creates doubt regarding his presence, when he admits that immediately after occurrence several persons who assembled at the place of occurrence, he did not disclose the manner of occurrence, the names of the accused persons. The counsel for the appellants submits that all - 16 - these circumstance, which have emanated from the deposition of P.W.1, renders his evidence unacceptable and incredible as a person present at the place of occurrence. The manner of occurrence as disclosed in the evidence of such witness cannot be relied upon and no conviction can be passed on the basis of deposition of such doubtful witness. 18. Regarding P.W.2. The counsel for the appellants has submitted that his presence at the place of occurrence and witnessing the entire incident is nothing but an afterthought. This is the fact that even in the fardbayan, which is alleged by the defence as a concocted document, though presence of P.W.1 and P.W.4 has been indicated the name of P.W.2 Jamuna Singh, brother of informant is completely missing. In case he would have been there, there was no reason for not mentioning his name in the fardbayan. Considering this, we find some substance in the submission at the counsel, as such, the evidence of P.W.2 as an eye witness, cannot be relied upon and no further discussion is required so far as his deposition is concerned. 19. P.W.4 is another witness who appeared in the court and deposed as an eye witness. The deposition of this witness is completely demolished by the evidence of P.W.5 the I.O. Qasim Khan, starting from Paragraph 16 to - 17 - 19 of his evidence. In these four paragraphs, P.W.5 has stated that he was searching for Kailash Singh to record his statement right from 30.12.1984 but he never made himself available for recording his statement. P.W.5 has also stated that all those statements which have been made by P.W.4 during his deposition in order to show his presence at the time of the occurrence at Aurangabad hospital or accompanying the informant while he was being carried to Gaya hospital, have never been stated before the I.O. while the statement of P.W.4 was recorded under Section 161 of the Cr.P.C., at para-19 of P.W.5, it relates to the statement made by P.W.4 before the I.O. during investigation which completely rules out the presence of P.W.4 at the time of the occurrence, prior to the occurrence and after the occurrence. The counsels have, thus, contended that since the credibility of three witnesses is doubtful, no conviction is sustainable. 20. Besides questioning the evidence of these witnesses, (P.W. 1 P.W. 2 and P.W. 4) another ground which has been taken by the counsels for the appellants relates to non-examination of the witnesses of Gajadharbigha, though it has come in the deposition of P.Ws.1 to 4 that several persons of Gajadharbigha assembled at the place of occurrence immediately after the occurrence. The counsels for the appellants have also - 18 - pointed non-examinations of one Sukhdeo from whose house the cot was brought to the place of occurrence for carrying the informant to hospital. Sukhdeo himself came at the place of occurrence but was not examined as a witness. There were independent witnesses but not examined, only interested witnesses were examined and this can also one of the reason for holding that the prosecution has not been able to prove the charge framed against the accused persons beyond all reasonable doubt. 21. On consideration of the submissions of the counsels and also on consideration of the evidence on record, we are of the view that the judgement of the trial court is not sustainable as such, it is being set aside. All other appellants, except Lala Dusadh are on bail. They are discharged from the liabilities of their respective bail bonds. The appellant Lala Dusadh is directed to be released forthwith if not wanted in any other case. The five appeals are acquitted and the four appeals are allowed. Patna High Court, Dated, the 12th of August,2010/Brajesh Kumar NAFR. ( Mridula Mishra,J. ) ( Dharnidhar Jha, J. )