Criminal Appeal (SJ) No.113 of 1997 **** Against the judgment, dated 17.04.1997, passed by Shri B.N. Shahi, Additional Sessions Judge, II, Nawadah, in S. Tr. No. 96 of 1994/24 of 1994 **** 1. Gokul Yadav, son of Rohan Yadav 2. Deonandan Yadav, son of Gokhul Yadav 3. Ramchandra Yadav, son of Gokhul Yadav All are residents of village Karma, P.S. Warisaliganj, district Nawadah .. Appellants Versus The State Of Bihar .. Respondent **** For the Appellant .. Mrs. Vimla Kumari, Adv. as Amicus Curiae For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. Appellants have been convicted under Section 307/34 of the Penal Code, however, appellants 1 and 2 have been sentenced to undergo rigorous imprisonment for six years and appellant no. 3 has been ordered to undergo rigorous imprisonment for four years. 3. The prosecution case arise out the complaint case filed by the complainant, Anita Devi, alleging therein that on 19.09.1992 Gokul Yadav, Deonandan Yadav and Ramchandra Yadav armed with dagger and lathi came to the house of the complainant and asked about her 2 husband for killing him and when the complainant refused to disclose then all the accused entered into the house and started searching her husband and when on the complainant protested then Godul Yadav told to kill him to which Deonandan Yadav and Ramchandra Yadav and thrown her on the ground and Gokul Yadav with intention to kill started cutting her neck and Deonandan Yadav armed with dagger started cutting his wrist and Ramchandra Yadav caught hold of her. 4. The further case is that there were small children of complainant who started crying for rescue on which the witnesses came and save. The husband of the victim-complainant used to reside at Nawadah in connection with his business so the victim was taken to Nawadah by train by witness Ramnandan Singh and Mithu Singh and informed the husband of the complainant who treated the complainant. The further case is that the matter reported to the Warisaliganj Police by her husband, but, the police did not respond to in this regard and, hence, the complaint petition, filed by her. 5. On the complaint petition, the complainant was examined on solemn affirmation and four witnesses, Munni Choudhary, Shiv Kumar Choudhary, Mauji Paswan and Ram Nandan Singh, were also examined on behalf of the complainant, the processes were issued against the accused persons and the opportunity was given to the accused persons for cross examination and, thereafter, the charge was framed and trial proceeded. 6. During the trial seven witnesses have been examined, who are P.W. 1, Munni Choudhary, P.W. 2, Shiv Kumar Choudhary, P.W. 3, Mauji Paswan, P.W. 4, Ram Nandan Singh, P.W. 5, Dr. Bimal 3 Prasad Singh, P.W. 6, Anita Devi and P.W. 7, Narendra Prasad. 7. The trial Court taking into consideration the evidence of witnesses considering the evidence of the witnesses, held that have supported the prosecution case and the evidence of P.W. 5 corroborates the injury and, hence, medical evidence also corroborates to the prosecution case. 8. However, the trial Court rejected the infirmities pointed out about the place of occurrence. P.W. 1 has stated that the occurrence took place in the verandah. However, P.W. 4 has stated that the occurrence took place in verandah, but, P.W. 6 has stated that the occurrence took place in a room and the children of the complainant have not been examined, but, convicted the appellants and sentenced, as mentioned above. 9. The learned counsel for the appellants, appearing as amicus curiae, submits that prosecution case suffers from various infirmities like improbabilities and testing the prosecution case on the touching stone of the probabilities of human conduct then the prosecution case is liable to be rejected as improbable. There were three persons armed with lathi and dagger, but, could not kill in the intervening circumstance and the child who made hulla not examined. 10. The prosecution case in the fardbeyan is that the accused persons came and Ramchandra Yadav thrown the complainant on the ground and Gokul Yadav started cutting her neck by dagger and Deonandan Yadav started cutting her wrist. Further, case of the prosecution is that in the house there was small children, they make hulla and started weeping and then the witnesses reached at the place of 4 occurrence. However, no children has been examined or brought in evidence nor it has come that who were those children. P.W. 6 is the informant who has not stated in her evidence that on the cry of the children the accused persons stayed. P.W. 6 has supported the prosecution case as alleged in the fardbeyan that the accused persons came, asked for her husband and caught hold of her and assaulted and in the meantime the witnesses came and took her to her husband and she was treated in the clinic of Dr. Bimal Prasad Singh. However, the witnesses have supported the prosecution case about the occurrence in the house and the witnesses came and saw the occurrence. The doctor, however, has found five injuries on the person of the informant, they are (i) incised wound 1” x ½” x ¾” at sub mental region of neck bleeding profusely, (ii) incised wound 1” x ¼” x ½” at right wrist interior part, (iii) incised wound 1” x ¼” x ¼” right wrist interior part, (iv) swelling 4” x 2” at left gluteal region and (v) swelling 2” x 2” at right side of chestand the age of the injuries are within six hours. Injuries (ii) and (iv) caused by sharp edge weapon and (iii) and (v) are by hard and blunt object, except injury (i) rest have been shown to be simple and injury (i) has been stated to be grievous. It was treated, if would have not been treated then could have been dangerous to her. The injury report is Exhibit 10. 11. However, testing the case in the touch stone of the probabilities, human conduct, the doctor has stated that injury (i) was grievous and there was profuse bleeding and if not treated by the doctor it could have been fatal. However, the occurrence took place alleged to be at Warisaliganj, but, the victim has not been taken to hospital even at 5 Warisaliganj and she has been taken to Nawadah by train when there was profuse bleeding and injury was dangerous to life, itself, goes against the human conduct. The normal conduct was to save her by treating her first and to inform her husband, but, in stead of taking her to hospital, she was taken to Nawadah by train. There at Nawadah, she was treated at private clinic and after treatment went to stay at the home of her husband, itself, indicate either she has not received any injury or her injury was not serious. 12. The police was not informed, but, the victim was taken to Nawadah, however, at Nawadah she was taken to the doctor and was treated though the doctor, P.W. 5, Bimal Prasad Singh, was attached with Nawadah Hospital, as appears from his prescription. However, the victim has serious injury, dangerous to life, but, the police was not informed by the doctor and the treatment was done at his private clinic at Nawadah, which is against the conduct of the doctor when the injury has been shown to be dangerous to life. 13. However, the occurrence alleged to have taken place at 06.00 p.m. and the doctor has stated that he examined the patient at 09- 10 p.m. and the victim claims that she at the time of occurrence got unconscious, but, got consciousness at Nawadah before coming to the doctor and, further, said that she get consciousness at the house itself. 14. She has, further, stated that she was treated by the doctor at 10-11 in the night and, thereafter, she went to the house of her husband and this indicates that either the injury report suffers from infirmity or the witnesses are not reliable 15. However, the witnesses, P.Ws. 1, 2, 3, and 4 in their 6 evidence have not supported the prosecution case that when they reached they saw the children were making hulla rather it was stated that it was the victim who was making hulla, neither the children have been examined nor the witnesses stated that they went there on the hulla of the children and, further, the witnesses stated that when they reached at the place of occurrence they saw the blood oozing out from the neck of the complainant and there is contradiction that some says that occurrence took in the room and some says that in verandah. However, the contradictions are minor, but, the statement of the witnesses apparently appears to be parrot like and has supported the prosecution case, as per evidence in their examination-in-chief. 16. Hence, having regard to the fact that the prosecution case as alleged that the three accused persons came armed with lathi and dagger asked for her husband and, thereafter, when she did not disposed they thrown her on the ground and started cutting her neck and hand, it appears to be improbable and, further the witnesses who said to have come on hulla whereas the case of the prosecution is that they came on cry of the children, but, they have not supported the cry of the children and some have stated that it was informant who was crying. However, the probability of her being crying is ruled out as per the allegation that she was thrown and one person was catching hold to her and other was cutting her neck and hand and since there was no intervening circumstance, there was no possibility, had there been any intention to kill, to spare the complainant. The further prosecution case is that she was seriously injured and injury was dangerous to life, she was taken from Warisaliganj to Nawadah instead of treating at Warisaliganj or 7 without any first aid is repugnant to normal common sense and is not believable 17. Hence, considering the facts and circumstances, I find and hold that on the touching of the stone of human probability that a person suffers serious injuries instead of being treated at Warisaliganj taken to Nawadah and at Nawadah itself the police was not informed by the doctor, who treated and gave the injury report and the complaint petition was filed after two days though explanation has been given that the next date they went to the Police Station and when not recorded then the complaint case was filed. The injury report also, as such, tha the injury was dangerous to life as there was profuse bleeding still at 09-10 p.m. does not inspire confidence and, hence, I find and hold that the prosecution has not been able to prove the charges beyond all reasonable doubts and, hence, the order of conviction and sentence is hereby set aside. 18. The appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 26th day of August 2011, N.A.F.R., S.A.