IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.775 OF 2007 Against the judgment of conviction and order of sentence dated 24.04.2007 passed by Additional Sessions Judge, Fast Track Court- V, Gopalganj in Sessions Trial No.574 of 1998/368 of 2006. 1. WAJID SAH @ SAIE, Son of Mahboob Saie. 2. HAZRAT @ HAZRAT SAIE, Son of Gulauddin, 3. AHMAD @ AHMAD HUSSAIN, Son of Hazrat, 4. MUMTAZ @ MOHD. MUMTAZ AHMAD, Son of Karmullah, 5. RAJ MOHAMMAD @ RAJ MOHAMMAD ANSARAI, Son of Gul Mohammad. All are resident of Village-Arna, P.S.Uchkagaon, District-Gopalganj ------- Appellants Versus State Of Bihar.... .... Respondent For the Appellants: Sri Ghulam Rabbani, Advocate For the Respondent: Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. After being charged together under Sections 307/34 IPC, the accused persons were tried by the Fast Track Court-V, Gopalganj, in Sessions Trial No.574 of 1998/368 of 2006 and by judgment dated 24.04.2007 the appellants were released after due admonition under Section 3 of the Probation of Offenders Act. The appellants have chosen to appeal against their conviction and sentence passed upon them. 2. In the backdrop of land dispute and litigation, the informant P.W.3 Saira Khatoon was 2 alleging in her fardbeyan(Ext-2) that while she was at her darwaja all the appellants came together armed with lathi, bhala and farsa and started giving blows with their respective weapons on her head. When Md. Wakil Sah(P.W.1) came to save her he was also assaulted. 3. On the basis of Ext-2, the FIR of the case, Ext-3 was drawn up and the investigation was entrusted to P.W.5, A.S.I., Vishwanath Rai, who after completing the same sent up the five appellants for trial which ultimately ended in acquittal. 4. It appears from the very evidence of P.W.3, the informant, in paragraphs-10 and 11 that there were case and counter cases arising out of the same incident and on the basis of compromise, the counter case in which the informant and others were accused had been disposed of by acquitting the accused of that particular case. It appears from the lower court records that in this case also the compromise was filed on 20.11.2004 which was duly signed by the parties but during the course of her evidence in court P.W.3 in the very paragraph-11 withdrew her compromise and wanted the case to proceed on its merit. This is how the five appellants have been convicted under Section 323 IPC. 5. I do not want to go into the factual 3 matrix of the case except to cite one anomaly in the prosecution case that initial prosecution version was containing an omnibus and general allegations against all the five appellants of giving blows with lathi, bhala and farsa upon the head of the informant P.W.3. It was not specified as to who had dealt a farsa blow on the head of P.W.3. However, while deposing in court the nephew of the husband of P.W.3, P.W.1 Wakil Sah specified that appellant Hazrat @ Hazrat Sai dealt a farsa blow on the back part of the head of P.W.3 which fact was supported by P.W.3 herself. P.W.4 Dr. Anil Kumar Sinha found a lacerated wound over left side of occipital area of scalp measuring 5 cm x 1 cm in width and skin deep. The doctor was of the opinion that injury could be caused by hard and blunt substance and may possibly be by the blunt part of a farsa. The law is too clear to be construed. It has been laid down repeatedly that once the prosecution through its evidence alleged that any sharp cutting weapon was used to deal a blow for causing an injury then it has always to be presumed that the sharp cutting part of the weapon had struck the part of the body attempted to be hit or which had really been hit and if the injury was inconsistent to that presumption then the manner of occurrence has always to be doubted. (Please see Hallu Vrs. State of Madhya Pradesh, (1974) 4 4 SCC 300) Going by the above principle of law on appreciation of oral and medical evidence, this Court has basically to doubt the manner of occurrence as was propounded by witnesses. However, it must fairly be recorded that the learned trial Judge has himself doubted the manner of occurrence and has further doubted that it was very difficult to infer as to how the four injuries which were found on the person of P.W.3 could be caused by any specific weapon. This was making it very difficult to record a finding that the informant P.W.3 was assaulted in a particular manner by using a particular weapons. In the opinion of this Court, this finding itself was sufficient to record an order of acquittal in favour of the appellants. However, I have observed in a few cases that a dangerous trend is developing among the Judges of the trial Courts of convicting accused persons who could have been acquitted on the very merit of the evidence which was available to them. This appears one such case in which the learned Judge has chosen a route to his own safety than to serve the cause of justice. We have to remind ourselves, i.e., the Judges of all ranks that our existence is only to serve the cause of justice. We have nothing personal in any matter. As such a Judge has been defined to be the person except himself. We do not owe anything to any of the 5 litigants before us, may be our ill-will also in case an order of conviction has been recorded wrong acquittals may shake the confidence of the general mass in the administration of justice. But if some innocent person or persons are convicted illegally on the basis of inadmissible or unacceptable evidence or on account of whim or caprice it shall further erode the confidence of the general mass in criminal justice system and that may prove to be the most disastrous day in the history of administration of criminal justice and then the very existence of the institution of judiciary shall be at stake. 6. We are already facing the situation of handling enumerable dockets on account of refusal of prayers for bail which prayers ought to have been allowed by the lower courts, in most of the cases by the Magistracy itself. Now we probably are likely to face a situation when the Judges manning the trial courts may not be acquitting accused even in appropriate cases after properly and appropriately appreciating the evidence. 7. The very record of facts and findings which appear made by the learned trial Judge in the impugned judgment could have justified passing an order of acquittal in favour of the appellants. I, as such, allow the present appeal by setting aside the 6 judgment of conviction passed upon each of the appellants and further direct that they shall not be burdened at any stage of their life or career on account of the wrong conviction which was thrust upon them and on that account the admonition which they had to forebear by virtue of an erratic judicial order. The appeal is allowed. Patna High Court, Dated, the 14th day of November, 2011, Brajesh Kumar/AFR ( Dharnidhar Jha,J.)