GOVT. APPEAL (DB) No.38 OF 1988 --------- Against the judgement dated 22.3.1988,pssed by the VIth Additional Sessions Judge, Munger in Sessions Case No. 170 of 1980. ---------- State of Bihar --------------------------------------- Appellant Versus 1. Om Prakash Poddar 2.Shyam Lal Poddar ( both sons of Banarsi Poddar) 3.Jang Bahadur Poddar 4.Jiwan Poddar ( sons of Lare Ram Baran Poddar 5.Siya Sharan Poddar , All are residents of village Ramganj, P.s. Khagaria, P.O. Mansi, Dist. Khagaria … ….Respondents. ----------- For the Appellant : Shri. Lala Kailash Bihar, Sr. Adv. & P.P. For the respondents : Shri Vivekanand Vivek, Advocate. P R E S E N T THE HON'BLE SHRI. JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE BIRENDRA PRASAD VERMA Dharnidhar Jha & B.P. Verma, JJ This Govt. Appeal has been preferred by the State to challenge the correctness and propriety of the judgment of acquittal passed by the 6th Additional Sessions Judge, Munger, in Session Trial No. 170 of 1980 on the 22nd March 1988. By the impugned judgment the five respondents were acquitted after being found not guilty. The facts of the case have been narrated by the learned court in its judgment in paragraph 2 but, so as to appreciating the arguments raised before us we want simply to have a cursory glance of the same. Admittedly, there was a land dispute between the parties and on that account the respondents were alleged to have erected a brick wall on some portion of a particular land which the informant P.W.3 had purchased by virtue of a deed executed as per directions of the Deputy Collector Land Reforms in a - 2 - proceedings under the Bihar Land Reforms Act, 1961. It is alleged that the informant and his brother P.W.7 Babu Saheb Jha went at the site of the alleged construction and started arguing with the respondents not to carry on the construction. The informant further stated that he climbed over the bamboo structure to persuade the mason engaged with the construction of the wall not to do it , whereupon he was pulled down by the accused persons. The specific allegation was that the respondent Omprakash Poddar dealt a garasa blow on the head and leg of the informant causing bleeding injuries to him. Respondent Jang Bahadur dealt lathi blow on the head, leg ,skapula and arms of the informant, P.W.3. Respondent accused Jiwan Poddar was said to have assaulted the informant by brick pieces on his chest, whereas respondent accused Siya Sharan Poddar dealt lathi blows on the right hand of the informant. Respondent Shyam Lal Poddar is said to have caught the informant by his neck and also to have pressed it in an attempt to kill him. It was alleged that Babu Sahib Jha P.W.7 intervened so as to rescuing the informant but he was assaulted by all the accused persons with lathi. The fardbeyan of the informant was recorded and on that basis the first information report was drawn up and the case was investigated into. The investigating officer had not been examined, as such, we cannot put on record his objective findings except that he sent up the respondents for trial and, accordingly, charges under sections 307 and read with section 149 and 447 of the Penal Code were framed against all the respondents. Separate charge under section 307 was framed against them as well, besides framing of charges under sections 147, 323 of the Penal Code too. Specific charges under sections 148, 307 read with section 109 of the Penal Code were framed - 3 - against respondent Om Prakash Poddar. The defence of the respondents was that they had falsely been implicated on account of land dispute. The prosecution examined 11 witnesses out of whom P.W.1, Balelshwar Pd. Verma was a witness to seizure of a few clothes of P.W.8 Rajendra Jha, the informant. P.W.10 Mahendra Prasad Yadav was a witness of formal character who gave evidence on the writings of the first information report. Three witnesses, i e, P.W.2 Babua Narayan Thakur, P.W.4 Satyadeo Jha, and P.W.5 Kamleshwari Thakur were tendered for cross-examination. The evidence in the case in support of the charges was mainly coming from P.W.6 Ramchandra Jha and P.W.7 Babu Sahib Jha. P.W.3 Rajendra Thakur the informant also appears giving eye-witness account to the extent. On consideration of the evidence of the witnesses the learned trial judge found that the prosecution was guilty of suppressing true facts and as such recorded the finding that the charges were not proved to the hilt. We have considered the evidence of the witnesses with the assistance of Shri Lala Kailash Bihari, Senior Advocate and Public Prosecutor appearing in this appeal for the State. We have also heard Shri Vivekanand Vivek appearing on behalf of the respondents. There are glaring infirmities afflicting the prosecution case. The learned trial judge appears properly and correctly reading those infirmities and contradictions in the very prosecution case and the story of assault by various weapons, which is alleged against the five respondents, appears improbable, firstly, because as per the evidence of the informant P.W.8 which is supported by his brother P.W.7 and others, the accused persons were empty handed when they were getting the - 4 - wall erected on that particular disputed plot of land. None of the witnesses has stated that while they were imploring the accused persons or the mason not to carry on the construction of the wall, any of the accused persons went away from the place of occurrence and fetched the weapons which were picked up individually by them so as to be wielded in the manner as narrated in the first information report. Besides, the manner of assault was not being probablised and supported by the evidence of the doctor, namely, Dr. Ramanand Kumar, P.W.9. The allegation against respondent Om Prakash Poddar was that he dealt a garasa blow on the head and leg of the informant but P.W.9 did not find any injury on the leg of P.W.8 and simple bruise was found on the head of the informant, but there was no fracture or breaking of any underlying structures of bone as was claimed by the informant or his brother P.W.7 Babu Sahab Jha. Similarly, respondent Jang Bahadur Poddar was alleged to have dealt four lathis blow respectively on the head, leg scapula and arms of the informant, but there was no injury found on any of the sites as alleged by the prosecution. The learned trial judge rightly appears finding that the allegation of giving blows with brick pieces on the chest of the informant by respondent Jiwan Poddar was also not getting support from the evidence of P.W.9 as no injury on the chest of the informant was found by the doctor. We have consistently pointed out the importance of documents like the first information report or the medical certificate. The two documents are potent weapons in the hands of the defence. By drawing the attention of the court the defence could very well argue that the initial story on the manner of occurrence as contained in the first information report was either - 5 - deviating from by the prosecution or the same has been improved by incorporating serious and meaningful embellishments. This could be the reason that in spite of the fact that first information report is not a substantive piece of evidence, its importance is being recognized as the foundation of the prosecution story so as to appreciating the evidence of witness which is adduced during trial by the prosecution to finding out as to how the prosecution has improved its initial story by making meaningful embellishments. Likewise the defence could read the evidence of the doctor out to the court and argue that the manner of assault as stated by the witnesses or as contained in the very initial document of the prosecution was not corroborated by the evidence of the doctor. The defence, as such, may argue that the evidence of the doctor improbablised the manner of occurrence and thereby rendered the prosecution evidence suspect and not to be accepted. After having considered the evidence of P.W.9 doctor Ramanand Kumar and the evidence of the witnesses, we find that the manner of occurrence and that of assault stands disproved by the evidence of the doctor. This is the reason that we attach sanctity to the findings of the learned trial judge that the prosecution appears not coming up with correct and true facts as regards the injured having received injuries. The finding of acquittal of the respondents recorded by the learned trial Judge finds favour with us on an additional ground, which has been highlighted by the learned trial judge that the medical report appears not a reliable piece of document. The learned trial judge has given very strong and plausible reasons in support of his finding by reading the evidence of injured and his brother who were not only present at the place of occurrence - 6 - but also testified to various aspect of the case. The learned trial judge has recorded that the medical report indicated that the doctor had examined the informant at 4.30 P.M. and his brother P.W.7 at 4.35 P.M. However, the evidence of P.Ws 6 and 7, the two injured, indicated as if they could not have reached the hospital prior to 5 P.M and in all probably some time in between 5 and 6 P.M. The above evidence as such made it impossible for the learned trial judge to accept the fact that the injured persons were examined by P.W.9 from 4.30 P.M. to 4.35 P.M. In addition to the above the learned trial judge has given yet another strong reason for recording the order of acquittal. It has been found by the learned trial judge that there were serious contradictions which were brought on record during cross-examination of the witnesses during trial which required to be proved under section 157 of the Evidence Act by examining the investigating officer of the case but the prosecution did not produce him and as such the attentions of the witnesses which had been drawn to their various statements during their cross-examination under section 145 Cr.P.C. could not be established. The learned trial judge drew adverse inference and held that it had seriously prejudiced the defence. Besides the witnesses had stated that on account of being assaulted, they had bled their injuries. The clothes which were seized in presence of P.W.2 by the I.O. when those were produced before him. The learned trial judge held that it was claimed that the I.O. had not only seized the blood stained clothes but also seized blood stained brick pieces. He had seized blood stained earth also. But on account of his non-examination the defence was seriously handicapped in getting the benefit of his objective finding as the defence had - 7 - suggested that there was no bleedings from the wounds of the injured and no blood had fallen on the ground which has been seized by the I.O. The witnesses have stated that many persons who were independent and who had no interest in the litigation had assembled on the place of occurrence who witnessed it, but they were also not produced and those who were produced were simply tendered for cross-examination. We, after having heard both sides, are also of the view that the prosecution was guilty of suppressing the true facts and also appears guilty of withholding some important witnesses entitling the respondents to acquittal . In the result we could not find any element of perversity afflicting the findings recorded by the learned trial judge. It was a view which was coming out of the evidence available to the learned trial judge on record and we fully uphold those findings. In the result, we do not find any merit in the present Government Appeal and the same is hereby dismissed. The respondents were admitted to bail at the orders of this Court. They stand discharged from their respective bail bonds. (Dharnidhar Jha, J) (Birendra Prasad Verma, J) Patna High Court The 22nd Feb,2010 Rahman/(NAFR)