GOVT. APPEAL (SJ) No.47 OF 1987 WITH CR. REV. No.1039 OF 1987 (Against the judgment of acquittal dated 28.8.1987 passed in Criminal Appeal No.2 of 1984 by Sri R.C. Srivastava, Additional Sessions Judge-IV, Muzaffarpur, setting aside the judgment of conviction and order of sentence dated 7.1.1984 passed by Sri Rana Abhay Singh, 2nd Assistant Sessions Judge, Muzaffarpur, in Sessions Trial No.174 of 1982). ------------- GOVT. APPEAL (SJ) No.47 OF 1987 THE STATE OF BIHAR------------------------------------------------------------APPELLANT. Versus 1. RAJ PALTAN RAI, SON OF KUNJI RAI. 2. HULAS RAI, SON OF BHANNU RAI. 3. RAM SEWAK RAI, SON OF BHANNU RAI. 4. PATTI RAI, SON OF SHIVLAL RAI. 5. KANSLAL RAI, SON OF SHIVLAL RAI. 6. NAGENDRA RAI, SON OF SHIVDHARI RAI. 7. CHANDESHWAR RAI, SON OF BHAGDEO RAI. 8. HIRA LAL RAI, SON OF PARICHOCHAN RAI. 9. GAMBHIRA RAI, SON OF PARICHHAN RAI. ALL ARE RESIDENTS OF VILLAGE FATEHPUR, P.S. AURAI, DISTRICT- MUZAFFARPUR. ………………………………………………………………………….RESPONDENTS. WITH CR. REV. No.1039 OF 1987 BRAJNANDAN SINGH, SON OF LATE VASUDEO SINGH, RESIDENT OF VILLAGE SARHANCHIA, P.S. AURAI, DISTRICT-MUZAFFARPUR. ………………………………..INFORMANT………………………………PETITIONER. Versus 1. RAJ PALTAN YADAV, SON OF KUNJI RAI. 2. PATTI RAI, SON OF SHIVLAL RAI. 3. GAMBHIR RAI, SON OF PARICHHAN RAI. 4. CHANDESHWAR RAI, SON OF BHAGDEO RAI. 5. HIRALAL RAI, SON OF PARICHOHAN RAI. 6. HULASH RAI, SON OF BHANNU RAI. 7. KANSULAL RAI, SON OF SHIVLAL RAI. - 2 - 8. NAGENDRA RAI, SON OF SHIVDHARI RAI. 9. RAM SEWAK RAI, SON OF BHANNU RAI. ALL RESIDENTS OF VILLAGE FATEHPUR, P.S. AURAI, DISTRICT- MUZAFFARPUR ……………………………OPPOSITE PARTY…… IST PARTIES. 10. STATE OF BIHAR………………………………..OPPOSITE PARTIES..2ND PARTY. ----------- For the Appellants-Revisionist: Mr. Jharkhandi Upadhyay, A.P.P. For the Respondents : Mr. Manvendra Roy, Advocate (in both cases) ------------- P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha,J: Both these cases have been taken up together as they arise out of the same judgment dated 28.8.1987 passed by Sri R.C. Srivastava, the then Additional Sessions Judge-IV, Muzaffarpur , in Criminal Appeal No.2 of 1984 and having been heard together they are being disposed of by this common judgment. 2. Government Appeal No.47 of 1987 has been preferred by the State under Section 378 (1) and (3) Cr.P.C., whereby the bonafide and rationality of the judgment dated 28.8.1987 passed by Sri R.C. Srivastava, the then IVth Additional Sessions Judge, Muzaffarpur, in Criminal Appeal No.2 of 1984, setting aside the judgment of conviction and order of sentence dated 7.1.1984 passed in Sessions Trial No.174 of 1982 by Sri Rana Abhay Singh, the then Second Assistant Sessions Judge , Muzaffarpur , has been set aside. 3. Criminal Revision No.1039 of 1987 has been preferred by the informant, Brajnandan Singh who is aggrieved by the same judgment of acquittal passed by Sri R.C. Srivastava, IVth Additional - 3 - Sessions Judge, Muzaffarpur. 4. The grievance of the State is that the learned lower appellate court has placed much stress on the delay in lodging the F.I.R. by the informant ignoring the explanation furnished by the prosecution which is apparently wrong in view of the fact that the informant had sustained several injuries some of which were grievous which necessitated his admission in the local State Dispensary at Narma and due to his critical condition he was referred to the Sadar Hospital, Muzaffarpur, for further management where he remained hospitalized from 6.6.1978 till 21.6.1978 and it was on 8.6.1978 that the F.I.R. came to be registered on the basis of the fardbeyan given by him. In this connection, the submission was that it would be apparent from perusal of the statement of the doctor, P.W.8, H.K.P. Thakur of Narma State Dispensary that the informant was unconscious and from the statement of P.W.6, Dr. M.K. Srivastava of Muzaffarpur Sadar Hospital , it would appear that the condition of the informant was critical due to shock and pain and the informant was restless and it was only in such a situation that the statement of the informant was recorded on 8.6.1978 by the police. This, according to the learned counsel, was sufficient reason to explain the delay in lodging of the F.I.R. and the learned lower appellate court travelled beyond its ambit to take this as a negative explanation. 5. Identical ground has been asserted by the revisionist in support of his revision. 6. The trial court did not agree with the defence plea of there - 4 - being inordinate delay in lodging the F.I.R. since it was of the view that as no one wants to implicate himself as a witness in a criminal case, generally, people do not inform the police and that all the relatives were engaged in the treatment of the injured informant. 7. The learned trial court appears to be remiss of the fact that being an election day a large contingent of police men as also officials must have been present. 8. It would appear from the impugned judgment of Criminal Appeal that the cause for negating the explanation furnished by the prosecution in lodging the F.I.R. is followed by cogent reasons. According to the learned lower appellate court the occurrence took place at about 8 A.M. on 5.6.1978 when the election for the post of Officers in the Gram Panchayat was being held and in such a situation, it cannot be believed even for a moment that none was ready to inform the police regarding the occurrence for 3-4 days and that too when the offence was a cognizable one and the F.I.R. could have been registered on the statement of any person who was acquainted with the facts of the case. The learned lower appellate court was aware of the condition of the informant and he has referred to the evidence of the Medical Officer of Narma State Dispensary as also the attending doctor at Muzaffarpur. The doctor at Muzaffarpur does not appear to have stated anything in respect of the informant being unconscious from the time of his admission in the Sadar Hospital at Muzaffarpur and instead he has stated that the patient was restless. Even the injury report (Ext.4) of the informant granted by the doctor at Muzaffarpur - 5 - does not reveal that the informant was unconscious when he was brought to the Muzaffarpur Hospital. As a matter of fact, the prosecution has not brought on record the admission register or the bed head ticket of Muzaffarpur Sadar Hospital regarding the treatment of the informant and to show that the informant was unconscious from the time of his admission till before the recording of his fardbeyan. Therefore, the net result was that there was nothing on record to show that the informant was not in a position to give his statement. The finding of the learned lower appellate court and the reasons assigned therefor on the aspect of delay, to my mind, appear to be reasonable and calls for no alteration. 9. The next point canvassed by the appellant-State is regarding the alleged incorrect findings of the lower appellate court in respect of the injury report. In this context, it was submitted that the learned lower appellate court had erroneously come to a finding that the original injury report had not been brought before the trial court. Countering the finding of the learned lower appellate court, it was submitted that the injury report (Ext.4) denotes that the injured was examined by the doctor on 6.6.1978 but the injury report was issued only on 10.6.1978 and in absence of bed head ticket the said injury report cannot be a primary document and therefore not admissible. 10. In this connection, it was submitted that the injury reports are generally issued on the requisition of the I.O. in due course of time which is prepared from the bed-head ticket. It was further submitted that when the informant was brought to the State - 6 - Dispensary he was unconscious and no police case had been registered and as such the injury report was not issued on the day when the injured was examined and was issued only after the statement of the injured was recorded on 8.6.1978. The learned counsel was also critical of treating Ext.4, the injury report prepared by P.W.6, Dr. Manoranjan Kumar Srivastava, as not admissible as primary evidence and also as highly suspicious which could not be relied upon. 11. The learned lower appellate court in not accepting Ext.4 as reliable has assigned his reasons as hereunder: “The evidence of P.W.6 Dr. Manoranjan Kumar Srivastava is that he examined the informant on 6.6.1978 at 3 P.M. and found 8 bruises, two swellings and three incised wounds. Injury report granted by P.W.6 Dr. Manoranjan Kumar Srivastava is Ext.4 in this case. Although P.W.6 Dr. Manoranjan Kumar Srivastava says that he has examined the informant on 6.6.78 at 3 P.M. but his injury report is dated 10.6.78 which shows that either the doctor examined the injured on 6.6.78 and wrote this injury report (Ext.4) from his own memory four days thereafter on 10.6.78, or after examining the injured on 6.6.78 at 3 P.M., he noted the injuries on some paper and then prepared this copy which has been marked Ext.4. The learned Additional P.P. appearing for the State failed to explain this fatal discrepancy. If doctor prepared this injury report four days after the examination of the patient, on the basis of his memory, then it loses the value it should have. If it is copy prepared by the doctor four days after examining the informant from the injuries noted somewhere - 7 - at the time of examination of the patient, then it becomes a copy of the original report and as such it is not admissible as primary evidence. Be that as it may, this injury report is highly suspicious and as such cannot be relied upon. Admission register either of Narma State Dispensary or of Muzaffarpur Sadar Hospitasl or even bed-head tickets which could have been normally maintained in both these hospitals have not been brought on record and this is also very important circumstance which creates strong doubt about the correctness of the prosecution case.” 12. The reasons assigned by the learned lower appellate court appear, to my mind, to be very much plausable and reasonable and cannot be disputed. 13. Let us now examine the nature of injuries sustained by the informant which are as follows: “Injury No.1: Bruise 6”x1/2” on right scapular region. 2: Bruise 4”x1/2” on left scapular region. 3: Bruise 3”x1/2” on lumber region. 4:Bruise with swelling 3”x2” on back of nick with acute tenderness and difficulty in movement of neck. 5: Bruise 4”x1/2” on right side of chest. 6: Bruise 3”x1/2” on left side of chest. 7: Bruise 3”x1/2” on right thigh. 8: Bruise 4”x 1/2” on left thigh. 9: Swelling with bruise 3”x1/2” on left fore - 8 - arms with tenderness. 10: Swelling with bruise all over left ankle joint with acute tenderness and difficulty in movement. 11: Incised wound 2 ½” x1/2”x scalp deep on left parital region of scalp. 12: Incised wound 2 ½” x ½”x scalp deep near left occipital region of scalp. 13: Incised wound 1 ½”x1/2”x bone deep near right ear.” 14. In the opinion of the doctor, the patient was found to be restless due to pain and shock and had he not been hospitalized it might have proved fatal to his life. In respect of injury no.10, it was stated that there was fracture of lateral malleous of left ankle joint as shown from X-ray and, therefore, he opined that the injury was grievous in nature. He reserved his opinion in respect of injury no.4, awaiting further for chemical observation since the X-ray report thereof showed that there was marked spondilities. This opinion of Dr. M.K. Srivastava is dated 10.6.1978 although the statement at the beginning of the injury report states of the doctor having examined Brajnandan Prasad Singh at 3 P.M. on 6.6.1978. There obviously is no indication therein of the said Brajnandan Prasad Singh, being unconscious. The supplementary injury report by Dr. M.K. Srivastava is dated 21.6.1978 and he has expressed his opinion that the patient is unable to rotate his neck and X-ray shows that there is fracture of third - 9 - and fourth cavical spine which chemically was also confirmed which may lead to neurological complication and he termed the injury as grievous. Admittedly, in the report dated 10.6.1978, the doctor had examined the X-ray report in respect of injury no.4 and there appeared no fracture in that report and it only indicated mobilized spondalitis and reserved his opinion for chemical observation. If that be the position then how can the report dated 21.6.1978 indicate fracture of 3rd and 4th cavical spine. Did it develop later on. 15. In the aforesaid circumstances, the doubt created in the mind of the learned lower appellate court appears to be fully justified. 16. The appellant-State is also critical of the adverse observations of the learned lower appellate court inasmuch as some of the witnesses, named in the fardbeyan, were not examined by the prosecution. In this connection, it is said that the informant in course of his evidence in court had specifically stated that some of the witnesses, named in the fardbeyan, had been gained over by the accused persons and it was not mandatory for the prosecution to produce all the witnesses cited in the fardbeyan and the choice was for the prosecutor to examine those witnesses he wanted to examine. 17. Admittedly, the evidence of eye witnesses is the most important evidence in criminal cases and if their evidence is acceptable, all other evidence that might have been produced by the prosecution receeds to the background and a duty is cast on the court to assess the evidence of eye witnesses first to find out whether the prosecution case is acceptable. It appears that in the instant case apart - 10 - from the poll officials who have merely stated about the occurrence having taken place the other witnesses who sought to support the prosecution case are in some way or the other linked with the informant. The learned lower appellate court has taken note of the fact that the supportive evidence of prosecution witnesses that appellant Raj Paltan Rai ordered his men to kill the informant has been falsified by the evidence of the Investigating Officer as these witnesses had not made such statements before him. 18. The alleged occurrence is said to have taken place at around 8 A.M. on 5.6.1978 but the plea of alibi taken by the accused Raj Paltan Rai is that at the alleged time of occurrence he was present at the polling booth at Fatehpur Barauna from 7 A.M. This plea of alibi is sought to be supported by D.W.2, Dinesh Chandra Prasad Gupta, a member of the polling party, stationed at Barauna booth, who stated that Raj Paltan Rai was present at the Barauna booth from 7 A.M. to 2 P.M. This fact is supported by the Investigating Officer who stated that Dinesh Chandra Prasad Gupta had indeed stated that Raj Paltan Rai was present at Barauna booth at the time of the alleged occurrence. The learned trial court appears to have ignored or had been remiss to this aspect of the matter and the learned lower appellate court has rightly taken into account this evidence to negative the probability of the prosecution version regarding the complicity of Raj Paltan Rai as also of his having given orders to his men to kill the informant. 19. There is another aspect of the matter. The prosecution - 11 - version is that the informant had been surrounded by 15 persons of whom 3 were armed with farsas. Had that been the situation and if the accused did have any intention of killing the informant they certainly could have achieved the very object easily. 20. I have had the occasion to peruse the judgment of the trial court as also the learned lower appellate court and I find no apparent reason to interfere with the judgment of acquittal passed by the learned lower appellate court since it is based on sound reasonings and after a great deal of soul-searching. 21. Since I have upheld the judgment of the learned lower appellate court, the Government Appeal fails and for the same reasons the Revision must also fail. 22. Accordingly, the Government Appeal preferred by the State and Criminal Revision preferred by the informant, are dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 12th day of August, 2009. Pradeep Srivastava/A.F.R.