Criminal Appeal (SJ) No.225 of 1998 **** Against the judgment, dated 01.06.1998, passed by Sri Mohammad Ali, Additional Sessions Judge, II, Khagaria, in S. Tr. No. 418 of 1988 **** Saryug Prasad Yadav, son of late Dukha Yadav of village Bahadurpur, P.S. Allouli, district Khagaria .. Appellant Versus The State of Bihar .. Respondent **** For the Appellant .. Mr. Arun Kr. Tripathi, Adv. as Amicus Curiae For the Respondent .. Mr. Sujit Kr. Bose, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and the State. 2. The appellant has been convicted under Section 304 part I of the Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case, as alleged by the informant, Satya Narain Mukhiya, that the appellant, Saryug Prasad Yadav, along with ten unknown persons on 15.03.1987 at about 02.00 p.m., came while the informant was fishing in the pond situated in village 2 Bahadurpur, along with Anand Mukhiya, Chotan Mukhiya, Chattu Mukhiya. They looted the fish and started indiscriminate firing and it is alleged that Saryug Prasad Yadav fired, which hit the informant by which the informant got injured and when the informant regained his consciousness he was taken to Bakhari Hospital where his statement was recorded and was medically treated. After investigation the charge sheet was submitted for offence under Section 302, 379 and allied sections of the Penal Code as the informant said to be died due to fire injury. On the charge sheet the cognizance was taken. 4. However, during the trial eight witnesses examined on behalf of the prosecution. The trial Court took into consideration the evidence of the witnesses held that witnesses, P.Ws. 1 to 6, supported the prosecution case regarding the firing by the appellant causing injury to the informant, Satya Narain Mukhiya and, further, took into consideration the evidence of P.W. 7, the doctor, who examined the informant on 24.04.1987 and found two injuries on his person (i) stitch wound in upper left thigh a and injury no. (ii) tenderness and swelling over right hypo condrium and the lower part of the chest and a bruise on horizontal direction, injury no. (i) caused by fire arm and injury no. (ii) caused by hard and blunt substance and, further, take into consideration the post mortem examination done on 04.04.1987 and death was due to cardio respiratory failure due to massive secondary haemorrhage from the rupture and, further, took into consideration the defence of the accused person and the evidence of D.W. 1, the doctor, who examined the accused, Saryug Prasad Yadav, 3 and found gun shot injury on his person and injury report proved as Exhibit “A” showing that Saryug Prasad Yadav also sustained a gun shot injury and, further, took into consideration the first information report of counter case about the firing by Saryug Prasad Yadav causing injury to the informant and the doctor has also found fire arm injury on the person of the informant and, hence, taking into consideration the fact that the injury was not on the vital part of the informant and was not so imminently dangerous that they must in all probability to cause death, held that offence under Section 302 of the Penal Code is not attracted and convicted under Section 304 part I of the Penal Code. 5. The amicus curiae, however, contended that the prosecution has not explained the injury on the person of the appellant, hence, the manner of occurrence has not been established and it must be held that the genesis of the occurrence and the manner of the occurrence has not been proved to record conviction. 6. The prosecution case is that the occurrence took place on 15.03.1987 and the informant was taken to the hospital on the next date, i.e., on 16.03.1987 where his statement was recorded and was examined by the doctor, however, the doctor, who examined the informant on 16.03.1987, has not been examined. P.W. 7 the doctor who examined Satya Narain Mukhiya on 24.03.1987 and found a stitch would upon the left thigh and a tenderness and swelling over hypo condrium and has mentioned that injury no. (i) caused by fire arm and injury no. (ii) caused by hard and blunt substance and both 4 the injuries were simple, the age of the injuries within two weeks approximately, however, he has, further, stated that x-ray plate show six pellets extracted. However, the x-ray plate has not been brought on record nor the doctor who examined at the State Dispensary was examined nor the earlier injury report has been brought on record. P.W. 7 has, further, stated that on 04.04.1987 he did the post mortem examination and opined that the death was due to cardio respiratory failure and has opined that he found the simple injuries which were not dangerous to life. 8. However, P.Ws. 1 to 6 supported the prosecution case, but, taking into consideration the counter version and the counter case and the injury on the person of the appellant, Saryug Yadav, which has been proved by doctor, D.W. 1, and it has been asserted that on 15.03.1987 he examined Saryug Prasad Yadav and the injury found was circumspective wound on the upper part of the left thigh and the wound was profusely bleeding and blood loss was excess. The patient was brought in drossy stage, would was 3” index finger deep, the age of injury was within six hours and injury report has been proved and marked as Exhibit “A”. The doctor though has stated that the life of the injured was in danger due to above injury and he can not judge whether the injury was simple or grievous and referred the patient to Patna Medical College Hospital. However, the case instituted by the defence is prior in time on 17.03.1987, on the date of occurrence. The investigating officer, P.W. 8, examined in the case has stated that he did not find any sign of fishing nor he find any 5 basket or any material to suggest that there was fishing nor he find any trampling mark and, hence, the investigating officer of prosecution case becomes doubtful. However, the trial Court rejected the plea of the injury on the person of appellant that the place of occurrence is not, on ground, same and if the place of occurrence is same and time of occurrence is same then it requires to explain the injury and rejected the defence case on the ground that the place of occurrence is at different place than place of occurrence of the counter case. More over, the time of occurrence of both the cases have been shown to be 02.00 p.m. on 15.03.1987, however, when the time of occurrence is same and there is allegation that Saryug Prasad Yadav fired causing injury to Satya Narain Mukhiya and, hence, the presence of two persons of both the parties is admitted and, hence, there is no reason to disbelieve that both the occurrences are at the same time. However, the injury on the person of Saryug Prasad Yadav is also by fire arm and according to D.W. 1 is dangerous to life and, hence, injuries are not as such that it can be said to be simple or superficial or that it has been manufactured. More over, the counter version of counter case at the earliest point of time on 15.03.1987, Saryug Prasad Yadav was examined by the doctor, D.W. 1, on 16.03.1987, itself, indicates the bona fide of the defence. However, the prosecution has not explained the injury and, hence, non-explanation of the injury will lead to a conclusion that the genesis of the occurrence is otherwise than what has been explained and the manner of occurrence is different and, 6 hence, under such facts and circumstances the appellant is entitled to benefit of doubt and, hence, the order of conviction and sentence is hereby set aside and appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 15th day of October, 2011, N.A.F.R., S.A.