Criminal Appeal (SJ) No.250 of 1997 **** Against the judgment and order, dated 17.02.1997, passed by Shri Prabhat Kumar Sinha, Additional Sessions Judge, III, Begusarai, in S. Tr. No. 1 of 1996 **** Fucho Singh, son of Ram Sagar Singh, resident of Barauni Flag, P.S. Teghra, district Begusarai .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. Mrs. Rima Sinha, 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 appellant and the State. 2. The appellant has been convicted under Section 307 of the Penal Code and sentenced undergo rigorous imprisonment for ten years and a fine of Rs. 5,000/- and in default of payment of fine, further, to undergo rigorous imprisonment for three months and has further convicted to undergo rigorous imprisonment for five years for offence under Section 27 of the Arms Act. 3. The prosecution case, as alleged by the informant that 2 on 28.08.1995 at about 02.00 p.m. while his cousin, Ajay Singh, was going to Barauni on scooter and Raj Kishore Singh was sitting behind him when reached north of Barauni Flag Gumti near temple of Bajranbali, Ajay Singh stopped and got down from the scooter and went to cobbler for polish of his slipper. It is alleged that in the meanwhile Fucho Singh and Ghuttar Singh, sitting near the temple, fired from pistol one after another at Ajay Singh with intention to kill him and fled away. The treatment of Ajay Singh was done in the clinic of Dr. Ram Asharay Singh from where he went to the clinic of Dr. Ashok Kumar Sharma. On the fardbeyan the first information report lodge and after investigation charge sheet submitted, cognizance taken and the case was committed to the Court of sessions. 4. During the trial seven witnesses have been examined on behalf of the prosecution, who are P.W. 1, Raj Kishore Singh, P.W. 2, Ram Padarath Singh, P.W. 3, Ramashray Singh, P.W. 4, Ajay Kumar Singh, P.W. 5, Biggan Singh, P.W. 6, Dr. Ashok Kumar Sharma, and P.W. 7 is the investigating officer. 5. The documentary evidences adduced are Exhibist 1 and 1/1 signature of P.W. 5, Biggan Singh, Exhibit 2 is the supplementary slip of Dr. Ashok Kumar Sharma, Exhibit 3 is the fardbeyan and Exhibit 4 is the formal first information report. 3 6. The learned counsel for the appellant contended that P.Ws. 1 and 5 are the chance witnesses and, further, injury no. 3 though shown to be grievous, but, the x-ray has not been proved and there is contradiction in the evidence of P.Ws. 1 and 2. The informant though claims that he was unconscious , but, the doctor’s report does not mention that the victim was unconscious and the investigating officer though have stated that at the place of occurrence there are several shots and investigating officer has stated that he recorded the statement, but, none of the witnesses at the place of occurrence was examined to support the prosecution case and the two witnesses are interested and their evidence suffer from contradiction, hence, not reliable. 7. However, the prosecution case is that the informant was going along with P.W. 1, Raj Kishore Singh, and then stopped his scooter and entered in the shop of a cobbler and, in the meantime, the occurrence took place. P.W. 5 was also relevant and he claims that at that time he gone to market. 8. P.W. 1 in his examination-in-chief stated that he went along with the victim, informant, on scooter and informant stopped scooter and went to cobbler to polish his slipper. However, in cross examination he stated that he proceeded from his house on foot and in the market he met with Ajay who stopped his scooter and disclosed that 4 he was going to Barauni Bazar then P.W. 1 get on scooter and then Ajay stopped scooter and was getting his slipper polished then occurrence took place. P.W. 5 has stated that he was waiting for informant for going to Begusarai at north of Barauni Flag Gumti at Mahabir Asthan and Fucho and Gutter sitting on the chabutra. Fucho fired which hit at neck, Gutter fired which hit left shoulder. However, the evidence of P.Ws. 1 and 5 are parrot like statement about firing and also with precision. However, both P.Ws. 1 and 5 are chance witnesses. 9. However, the victim was taken to the clinic of doctor, P.W. 3, where the victim has been treated. 10. However, P.W. 3 found three injuries, injuries 1 and 2 shown to be simple in nature, however, injury 3 shown to be a fracture of left side of mandible, however, the x-ray report has not been proved and, hence, the report about injury 3 as grievous does not inspire. P.W. 3 sated that the patient was brought by a private person and there is no mention that the patient was unconscious. P.W. 6, the doctor though has stated that he removed one pellet from sub mandible region of the victim, but, in cross examination he has not stated that he has not given any identification mark of the patient, he saw the wound and x-ray place, but, he has not issued the injury report nor mentioned the colour 5 of the wound. P.W. 6 has, further, stated in his evidence that from the report it does not appear that there was any blood clot. He has not given time of operation in his report. In the report it has not been mentioned that the operation done in his clinic. Hence, in view of evidence of P.W. 6 in cross examination does not inspire confidence. 9. However, having regard to the evidence of P.W. 6 that no identification mark of patient was given in the report and the x-ray report has also not been proved. P.W. 4 though has stated that after the occurrence he got unconscious and gets his consciousness in the clinic. However, neither P.W. 3 nor P.W. 4 stated that the victim was unconscious and, further, having regard to the fact that P.Ws. 1 and 5 are the chance witness and no independent witness of the vicinity of place of occurrence has come forward to depose when the evidence of the investigating officer that there were several shops and the investigating officer also recorded the statement of those shop keepers, but, none has been brought in evidence to support the prosecution case. 10. Hence, having regard to the facts and circumstances, since the x-ray plate has not been brought, P.W. 6 has not mentioned the identification mark on the person of the victim in his report and evidence of P.W. 3 shows that injuries 1 and 2 are simple and though injury 3 found to be grievous, but, for the same x-ray report has not 6 been proved and, further, the fact that no witness has been examined in this case as the evidence of the persons at the place of occurrence and the shop keepers has been related and there is contradiction in the evidence of P.Ws. 1 and 5 regarding the occurrence and manner taken by the victim and, further, they are chance witness as well as interested witness and, hence, under the facts and circumstances, the appellant is given the benefit of doubt and the prosecution does not able to make out the case against the appellant beyond reasonable doubt. 11. The order of conviction and sentence recorded by the lower appellate Court is not sustainable in the eye of law and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 18th day of July 2011, N.A.F.R., S.A.