CRIMINAL APPEAL No.371 OF 1993 ***** Against the judgment of conviction dated 15th of December, 1993 passed by Sri Eric Mecayari, learned 4th Additional Sessions Judge, Samastipur in Sessions Trial No.-479 of 1990. 1. SHANKAR NARAYAN RAI, S/O-Harishchandra Rai, R/O-Vill-Chilmit, P.S.+ Distt.- Begusarai. 2. MOGAL SAH, S/O-Jamun Sah, R/O-Vill-Suro, P.S.-Bachbara, Distt.-Begusarai. --------------------------------------(Appellants) Versus THE STATE OF BIHAR -----------------------------------(Respondents) 1. For the Appellants : Mr. Dinu Kumar (Advocate) : Mr. Manoj Kumar (Advocate) 2. For the State : Mr. Ali Mozaffar (APP) P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ***** S.K. Sharma, J. The appeal is against the judgment and order dated 15.12.1993 passed by Sri Eric Mecayari, 4th Additional Sessions Judge, Samastipur in connection with Sessions Trial No.- 479 of 1990 whereby the Appellant No. 1 was convicted for the offences under Section 307 of the Indian Penal Code and Appellant No. 2 was convicted for the offences under Section 307 read with 34 of the Indian Penal Code and the 2 Appellant No. 1 was sentenced to undergo rigorous imprisonment for five years under Section 307 of the Indian Penal Code and the Appellant No. 2 was sentenced under Section 307 read with Section 34 of the Indian Penal Code for five years rigorous imprisonment. 2. The prosecution case has resulted on the fardbeyan of P.W. 4 Mahabir Rai given before the police at 9.30 hours on 22.01.1990 in injured condition alleging therein that at 12.00 A.M. on 21.01.1990 he was requested by Appellant No. 1 to go to Dalsingsarai for obtaining cement from one Bhola Rai. But when the informant arrived at Dalsingsarai then he was informed that the contractor had gone outside. Appellant No. 1 went for searching the contractor towards east side and when the informant reached near the Dalsingsari College in the evening at 6-7 P.M. then the informant was assaulted by Appellant No. 1 by knife on neck from behind with intention to kill him. One 3 person who used to live with Appellant No. 1 was catching hold of the informant at that time. 3. After receiving injury the informant binded ribs by cloth piece (Gamchha) and came to the hospital by a rickshaw. His fardbeyan resulted in registration of the First Information Report vide Dalsingsarai P.S. Case No.- 5 of 1990 for the offences under Sections 341, 324, 307/34 of the Indian Penal Code against Appellant No. 1 and the allegations were investigated into and charge sheet was submitted. The case was committed. When the accused pleaded innocence and then the trial proceeded against them. 4. In order to prove its case, the prosecution has examined 18 witnesses. Out of them, P.W. 1 Bishwanath Mahto, P.W. 2 Harischandra Jha, P.W. 3 Md. Ekwal, P.W. 8 Parmeshwar Rai and P.W. 18 Ramakant Rai were formal witnesses who respectively proved formal First Information Report (Ext. 1), forwarding report 4 (Ext. 2) on fardbeyan, Fardbeyan (Ext. 3), injury report (Ext. 6), discharge slip (Ext. 7) and police requisition (Ext. 8) which was sent to the doctor. 5. P.W. 5 Ram Lagan Rai, P.W. 7 Ram Bahadur Rai, P.W. 11 Chaukidar Mohan Paswan, P.W. 13 Ram Pukar Choudhary, P.W. 14 Naresh Pandit and P.W. 15 Ram Chandra Paswan were tendered. P.W. 6 Baijnath Rai went to the Dalsingsarai Sadar Hospital after knowing about the occurrence and fardbeyan was recorded in his presence. His signature on fardbeyan is Ext. 5. P.W. 16 Jogi Rai has not supported the allegations and he was declared hostile by the prosecution. He denied to have given any statement before the investigating officer. The material witnesses whose evidence are to be scanned as P.W. 4 the informant, P.W. 9 Sahdeo Rai, P.W. 10 Dafadar Parmanand Thakur, P.W. 13 Kailashi Devi, wife of the informant. Dr. Baidnath Sharan Sinha who has 5 examined the informant was examined as P.W. 12. He has examined the informant on 21.01.1990 at 9.00 P.M. under requisition of the police. The I.O. has been examined as P.W. 19. 6. The defence of the accused persons was of innocence and of false implication. The court considered the evidence of the prosecution and came to the opinion that the prosecution has been able to prove the charges against the appellants and the appellants were convicted. The appellants have challenged the judgment and order of conviction and it has been submitted that the prosecution has not prove the place of occurrence, manner of occurrence and time of occurrence. It has been submitted that only the informant Mahabir Rai P.W. 4 is the witness of the occurrence. On the point of assault and none of the witnesses have turned up in support of the prosecution version so far as the charges with regard to assault was 6 concerned. Appellant No. 2 is not even named in the First Information Report and he was identified in the court in course of trial. 7. According to the informant P.W. 4, he has received injuries on account of stabbing by the Appellant No. 1. According to his evidence at the time of occurrence he was ahead of both the accused/appellants that time accused Mogal Sah caught hold of the informant and Appellant No. 1 has inflicted dagger blow on his neck. The informant has explained his injury on his throat in course of his evidence. His evidence is with regard to assault by dagger but he has not stated as to how many injuries were caused on account of assault by dagger. 8. Medical evidence suggests that P.W. 4 was having two punctured wounds on lower part of his abdomen. The informant stated that he tied his wounds with towel left by Appellant No. 2. The informant has developed the fardbeyan because he has not stated that towel was left by 7 Appellant No. 2 after the occurrence. According to P.W. 4 he walked for half a kilometer then met the villagers who put him on rickshaw and sent to Dalsingsarai hospital and in the next morning his fardbeyan was recorded and signature has been taken. The motive given by him is that he was requesting cement for construction of his house and the Appellant No. 1 has promised to arrange it. 9. Suggestion was given to that witness as to whether there was enmity with the family of the Appellant No. 1 Shankar Narain Rai. It was stated by the informant that he had a family dispute with his brother and Appellant No. 1 who is in relation of his brother. The fardbeyan does not disclose the name of the accused Mogal Sah because according to the informant he was not acquainted with him nor knew his name. The evidence shows that Appellant No. 2 was identified on the talk of the informant stated that Appellant No. 2 has caught hold of 8 his hands at the time of occurrence. The cross- examination of P.W. 4 revealed that he is separate in mess and business. It is clear from his cross-examination that accused Shankar Narain Rai used to stay in the residence of contractor Ram Naresh Rai. There is no evidence at all that the informant have taken money for purchase of cement. 10. The occurrence is of night and no source of identification is disclosed. There is slight contradiction in the evidence of P.W. 4 in the medical examination. 11. According to P.W. 4, he received two injuries but the doctor has found following three injuries : a. One incised wound of about 3”x1/4” to skin deep in front of upper part of the neck transversely placed and its direction was from left to right. b. Two punctured wounds of about 1 and ½” x ½” about 1” 9 apart on the lower part of abdomen. Omentum was protruding through the wound. Margins of wound were smooth and clean cut. Depth was not probed. c. Abrasion of about 1”x ½” on left palm in mid part. d. Breath smelts alcohol. All the injuries, in the opinion of the doctor were simple and aged within 12 hours. He opined that injury no. I and II were respectively caused by sharp cutting weapon and injury no. III was caused by friction against rough object. The injury report of the doctor is Ext. 6. 12. The examination of the doctor has given another version about the finding of Alcohal contents in 10 the breath of the informant. Other witnesses have not supported the allegations as made out by P.W. 4. The case is based on the sole testimony of the informant P.W. 4. Others are hearsay witnesses and all of them have not supported any part of the allegation. The full brother and other family members of the informant were tendered. 13. The informant’s wife was examined as P.W. 13 and she has stated that her husband never takes liquor. But the finding of the doctor contradicts her. She is also not a witness of the occurrence. She has come to know later on and she has stated about the enmity and she has identified Appellant No. 1 only. 14. On the other hand the investigating officer has given his evidence and has stated that at the place of occurrence nothing was found. It was a lonely place. No blood was taken by the investigating officer. In course of investigation, he enquired into and witnesses have stated that 11 the informant has falsely implicated the appellant at the instance of others. About Appellant No. 1 it was stated that he is a student of B.A. and he was an intelligent student having no complaint of any person against him. In his further evidence P.W. 18 has stated that in course of investigation he came to know that in the evening of occurrence there was dispute in the toddy shop between the informant and owner of the toddy shop. About Shankar Narayn Rai all the witnesses examined by the investigating officer indicated that he is a student, having no complaint in the entire village P.W. 18. Parmanand Thakur was examined under Section 161 of the Code of Criminal Procedure and he has told the investigating officer that he has seen the informant under influence of liquor at that time, he was injured but he has not disclosed the name of the person who has assaulted him. 15. In view of the evidence of P.W. 18 with regard to 12 conduct of Appellant No. 1, it appears that the witnesses have not supported the prosecution case in its entirety. Even the single witness namely the informant has concealed many things in his evidence. Finding of Alcohal in his breath by the doctor gives another twist of the occurrence. It was for the prosecution who establish beyond all reasonable doubts the charges that on the date and time of occurrence the appellants formed an unlawful assembly and of the appellants have caused dagger blow. The motive is there. No doubt motive is a double aged weapon but in that background a doubt is created. Once the doubt is created then the benefit of doubt goes in favour of the appellants. In view of the circumstances above, it is apparent that the prosecution has not been able to prove the charges beyond all reasonable doubts against the appellants. 16. After considering the materials on record, I am of the view that the trial court has erred in 13 passing the order of conviction and sentence. So, the impugned judgment needs to be set aside. 17. In the result, this appeal is allowed and the judgment of conviction and sentence passed by the court below is hereby set aside. The appellants are also discharged from the liabilities of their respective bail bonds. Patna High Court Dated 13th August, 2009 kksinha/N.A.F.R. (Shyam Kishore Sharma, J.)