Criminal Appeal (SJ) No.122 of 1998 Against the judgment and order of conviction and sentence dated 25. 03. 1998, passed by Shri Mohammed Ali, Additional Sessions Judge II, Khagaria, in Sessions Case No. 164 of 1994. Md. Sarfaraz, son of Md. Hakim. Resident of Village—Ratan, Police Station- Gagri, District- Khagaria. .... .... Appellant. Versus The State of Bihar .... .... Respondent. WITH Criminal Appeal (SJ) No. 136 of 1998 Against the judgment and order of conviction and sentence dated 25. 03. 1998, passed by Shri Mohammed Ali, Additional Sessions Judge II, Khagaria, in Sessions Case No. 164 of 1994. Md. Karu Khan, son of Md. Late Hamif, resident of Village- Ratan, Police Station- Gagri, District- Khagaria. .... .... Appellant. Versus The State of Bihar .... .... Respondent. with Criminal Appeal (SJ) No. 158 of 1998 Against the judgment and order of conviction and sentence dated 25. 03. 1998, passed by Shri Mohammed Ali, Additional Sessions Judge II, Khagaria, in Sessions Case No. 164 of 1994. 1. Md. Imtiaz , son of Hanif. 2. Md. Sultan, son of Abul. 3. Ketabul, son of Late Md. Usman. 4. Md. Abul, son of Late Md. Usman. All of them resident of Village- Ratan, P.S. Gogri, District- Khagaria. .... .... Appellants. Versus The State of Bihar .... .... Respondent. For the appellants. : Mr. Nasrul Huda Khan, Advocate. Md. Harun Quareshi, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD 2 Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Three appeals have heard together and disposed of by the common judgment as three appeals arising out of same judgment and order dated 25th March, 1998, passed by Shri Mohammed Ali Additional Sessions Judge II, Khagaria, in Sessions Case No. 164 of 1994, by which he has convicted Md. Karu the appellant in Cr. Appeal No. 136 of 1998 for offence under Section 304 Part II I.P.C. and sentenced to undergo rigorous imprisonment for ten years and further convicted for offence under Section 147 I.P.C. and sentenced to undergo rigorous imprisonment for six months. The appellant, Md. Sarfaraz in Cr. Appeal No. 122 of 1998 has been convicted for offence under Section 304 Part II I.P.C. and sentenced to undergo rigorous imprisonment for ten years and further convicted for offence under Section 148 I.P.C. and sentenced to undergo rigorous imprisonment for six months. The appellants of Cr. Appeal No. 158 of 1998 have been convicted for offence under Section 147 I.P.C. and sentenced to undergo rigorous imprisonment for six 3 months. 3. The prosecution case as alleged that deceased Parvez Khan was in his Sasural and he used to cut jokes with the family members of the villagers as his sasural was there in the village. The occurrence took place for the reason that he cut jokes with the wife of Kitabul. It is alleged that on 17. 12. 1993, 4.45 P.M., the informant who is brother-in-law of Parvez Khan were returning after taking tea at the shop of Irshad and arrived at place of occurrence then Md. Sarfaraz armed with Gupti and other appellants armed with lathi raised hulla to assault. The appellants surrounded the deceased and informant and then Md. Karu Khan assaulted with lathi on the head of Parvez, Parvez fell down thereafter accused Sarfaraz pierced Gupti on the neck of Parvez Khan. The informant raised hulla then Md. Karu Khan assaulted the informant on his head and in the meantime villager rushed to the P.O. then accused persons flee away. 4. On the Fardbeyan, F.I.R. was lodged for offence under Section 307 I.P.C. and allied Sections, but during investigation, Parvez Khan died during his treatment and hence Section 302 I.P.C. was added and 4 subsequently charge sheet submitted. Cognizance was taken and case was committed to the Court of Sessions. 5. During trial eleven witnesses were examined. Out of them P.W. 1 is the informant. P.W. 2 Md. Nasim khan, chance witness. P.W. 3 and 4 have been tendered. P.W. 5, wife of the deceased. P.W. 6 Md. Rabi Alam, is cousin brother of the informant. P.W. 7 tendered. P.W. 8 is the doctor who examined Parvez Khan after the occurrence. P.W. 9 doctor who conducted post mortem. P.W. 10 the I.O. and P.W. 11 formal witness. One witness has been examined on behalf of the defence. Hence out of eleven witnesses, P.W. 1, 2, 5 and 6 are material witnesses. 6. The defence of the accused persons that no occurrence as alleged occurred and the appellants have falsely been implicated due to enmity. 7. The trial court taking into consideration the evidence of material witnesses of P.W. 1, 2, 5 and 6 supported the prosecution case that Karu assaulted the victim on head and Sarfaraz gave Gupti blow on neck and other accused assaulted by lathi and further taking into consideration the evidence of the doctor P.W. 8 and 5 9 held that prosecution have proved the charge and there is nothing to disbelieve their testimony. 8. Learned counsel for the appellants however contends that P.W. 1, 2, 5 and 6 have given parrot like statement that all the accused persons surrounded them. Md. Karu Khan gave a lathi blow on the head of Parvez and Md. Sarfaraz gave Gupti blow on the neck of the Parvez Khan. All the other accused persons said to have assaulted by lathi, but there is no evidence with regard to the assault of other accused persons who assaulted on what part. Further P.W.8 is the doctor who examined Parvez found three injuries, but did not found sharp cutting injury, but the doctor who conducted post mortem examination found five injuries which include sharp cutting injury on the head which proved to be fatal. There is no evidence about assault on head by sharp cutting weapon. Further there are discrepancies in the evidence of witnesses and conviction on these evidences is not sustainable. 9. Perused the record and evidence of the witnesses. The prosecution case in the Fardbeyan that the appellants surrounded the informant and Parvez Khan. 6 Md. Karu gave a lathi blow on person of Parvez by which he fell down and then Md. Sarfaraz gave a Gupti blow on the neck of Parvez. Thereafter, the informant made hulla, then Md. Karu gave lathi blow on the head of the informant. On hulla villager came then accused persons flee away. There is no averment in the Fardbeyan about assault by other accused persons. However, P.W. 1, 2, 5 and 6 have stated in their evidence in same words that accused persons surrounded then Md. Karu Khan gave a lathi blow on the head of Parvez and Parvez fell down and thereafter, Md. Sarfaraz gave Gupti blow on the neck and when informant make hulla then Md. Karu gave a lathi blow on the head of the informant. 10. P.W. 2 is chance witness. He was going from Jamelpur and reached bus stand and from there proceed for his house and on hulla who came to Masjid and then went to darwaja of Salahauddin and has stated in parrot like statement in same words as stated in Fardbeyan. However, in para 6 in cross-examination admitted that he is uncle of the deceased. His father and father of Parvez were full brother has stated that he cannot say where the Parvez had fallen. P.W.1 is the 7 informant. P.W. 2 is chance witness and claim to saw the occurrence. P.W. 5 is wife of the deceased, though, gave parrot like statement in her examination-in-chief supported the prosecution case, but in her cross- examination in para 9, she stated that she reached at the P.O. then she found that her husband fallen state and blood oozing from the injury. In para 10, she has further stated that after her arrival Rabi Alam, Nasim and Noor Hassan came. In para 11 stated she reached at P.O. she gave water on his husband’s mouth then he gain consciousness and disclosed that he received injury by lathi on his head by Karu and Sarfaraz has gave Gupti blow on his neck and other accused persons have assaulted by lathi. Hence from evidence, it is apparent that she is not an eye witness to the occurrence and develop a new story that deceased disclosed her about assault is making out a third case and no one supported or corroborated so statement does not inspire confidence. P.W. 6 has also supported the prosecution case in parrot like statement has stated that he was seeing the occurrence and all the four witnesses are relied with each other. 8 11. However, P.W. 8 is the doctor who examined Parvez Khan found three injuries i. One lacerated wound 1/1/2” on upper part of head. ii. Lacerated wound bone deep on right side of chin. iii. Abrasion on left little toe. However, stated Injury No. 1 was caused by hard and blunt substance and grievous in nature and rest of the injuries are simple. 12. However, P.W.9 who conducted autopsy on the person of Parvez Khan has found five injuries; (a) Rigor mortis present on all the four limbs. (b) One stitched wound over vault of scalp over left parietal bone 1/1/2”x 1/4". (c) One stitched wound over chin 2” x 1/4". (d) One abrasion over right side of vault of scalp 1”x 1/4". (e) Abrasion over 5th toe of left foot 1/2” x 1/4". On dissection : Blood and blood cot present in subcutaneous tissues in connection with injuries mentioned above. On removal of stitches wound of Injury no. 2 was incised. Whole subcutaneous tissues of scalp 9 coularis blood clots. Subcutaneous tissues under the wound was also incised. There was fracture of left parital bone underneath this injury. Blood was oozing out from fracture side. Urinal cavity was full of blood and clot. Brain matter near this fracture side was incised. 13. Hence, though, there are three injuries found on the person of Parvez Khan by P.W. 8. But P.W. 9 has found five injuries. Out of five injuries, two injures were found on the head whereas P.W. 8 found only one injury on the head. P.W. 8 found that injury was caused by hard blunt substance whereas P.W. 9 found one out of two injuries on head by sharp cutting weapon which proved to be fatgal. However, it is also pertinent to mention that, though, there is allegation of assault on neck with specific evidence that Sarfaraz pierced Gupti on neck, but no injury was found on neck and it was synchronise that the injury may have been caused over chin, but the injury on chin found to be lacerated and hence medical evidence and oral evidence found at variance. Injury alleged by Gupti, but injury was found to be lacerated on chin and there is no explanation of 10 other injury on the head and it is said to be abrasion. 14. However, with regard to the second injury on head, the trial court has explained that injury may be caused during carrying the victim and submission that further injury might have been inflicted on the body of Parvez Khan to make the case serious is devoid of any merit is not corroborative to prosecution case as well as two injuries found on chin and on head are also not in consonance with oral evidence. The injury found on the head found to be sharp cutting injury which is alleged to be by lathi and injury on neck, though, alleged to have been given by Gupti has found to be laceration when the allegation is assault by Gupti. Hence creates a doubt of manner of occurrence, though, it has been stated and explained that sometime injury on head caused by hard blunt substance appears to be sharp cutting injury. 15. P.W. 9 stated that on removal of stitches of wound of injury no. 2 was incised whole subcutaneous tissues of scalp contain blood clods. Subcutaneous tissues under the wound was also incised and further in para 2 sub para (iii) has stated that injury no. 2 is caused 11 by hard and blunt substance by sharp cutting weapon and to question in para 3 whether lathi blow is given on the scalp what the injury would appear to be caused by sharp cutting weapon and this injury may look like incised wound. 16. All the above injuries are antimortem in nature. All the injuries except injury no. 2 is caused by hard and blunt substance. Injury no. 2 is caused by sharp cutting weapon. 17. Hence taking into consideration the entire evidence, P.W. 1 is the informant who has supported the prosecution case, but P.W. 2 is a chance witness and evidence of P.W. 5 is not reliable and found that, though, seven persons alleged to have been surrounded at the time of occurrence, but no role has been attributed in the Fardbeyan and there is contradiction in the evidence of oral evidence as well as medical evidence about manner and nature of allegation and hence it caste a serious doubt and accused persons are entitled for benefit of doubt. 18. Hence I find and hold that prosecution has not been able to prove the charges beyond reasonable 12 doubt and hence order of conviction and sentenced recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court The 23rd September, 2011. NAFR/m.p. ( Gopal Prasad, J.)