IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (DB) No.67 of 1989 -------- Against the judgment and order dated 7.2.1989 passed by Shri Shashi Kumar Choudhry, 3rd Additional Sessions Judge, East Champaran, Motihari, in Sessions Trial No.14 of 1984/46 of 1987. -------- 1.Basudeo Prasad son of Bujhawan Prasad 2.Bijoy Prasad son of Basudeo Prasad …….. ……..Appellants Versus The State of Bihar …….. …….Respondent --------- For the appellants: Mr. Rakesh Kumar Sinha, Advocate For the State: Mr.Dilip Kumar Sinha, A.P.P. --------- P R E S E N T The Hon’ble Mr. Justice Navaniti Prasad Singh The Hon’ble Mr.Justice Ashwani Kumar Singh Navaniti Prasad Singh & Ashwani Kumar Singh,JJ. The present appeal is directed against the judgment and order dated 7.2.1989 passed by Sri Shashi Kumar Choudhry, 3rd Additional Sessions Judge, East Champaran, Motihari, in Sessions Trial No.14 of 1984/46 of 1987. 2. By the aforesaid judgment appellant no.1 has been convicted for the offence under section 307/34 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo rigorous imprisonment for one year. Appellant no.2 has been convicted for the offence under section 307/34 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo rigorous imprisonment for two years. He has further been convicted for the offence under section 326 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for three years. The 2 sentences have been ordered to run concurrently for appellant no.2. 3. As per prosecution case, there was a long standing dispute with respect to ownership of a “Shisham” tree between Shashi Bhushan Prasad ( P.W.3) and Basudeo Prasad (appellant no.1). On 19.8.1983 at about 9 a.m. a Panchayti was going on regarding said disputed “Shisham” Tree. The informant was sitting at his door. One of the “Panch”, Ram Sagar Singh (P.W.7) called him and asked from him as to who was the actual owner of the “Shisham” tree in question. The informant in reply told that the same belonged to Shashi Bhushan Prasad. Shashi Bhushan Prasad was with his back to his home. In the mean time the appellants who are father and son together with co-accused Ashok Prasad rushed towards their house. It is alleged that appellant no.1, Basudeo Prasad, asked form his wife to give him gun and cartridges. Co-accused, Bhagirathi Devi brought the gun and cartridges from her house and handed them over to appellant no.1, Basudeo Prasad. Thereafter, it is alleged that appellant no.1, Basudeo Prasad, along with appellant no.2, Bijoy Prasad and co-accused Ashok Prasad went to the roof of their house. Bijoy Prasad took the gun from Basudeo Prasad and fired twice. The first shot hit Shobha Kumari (P.W.6), the daughter of the informant in her right leg and the second shot hit the informant in the left shoulder. 4. The specific case of the prosecution in the first information report is that Rameshwar Nonia, Gyan Prakash, Dina Nath Prasad and others witnessed the occurrence. Thus, the allegation in the first information report is that the accused persons in order to kill the informant deliberately fired upon him and in that course informant’s daughter also sustained gun shot injury. 3 5. Oral statement of the informant was recorded on 19.8.1983 at 1.30 p.m. in Sadar Hospital, Motihari. Four persons including the two appellants were implicated as accused in the first information report. They are Bijay Prasad, Ashok Prasad, Basudeo Prasad and Bhagrathi Devi @ Saraswati Devi. They are the two sons and the father and mother.The case was registered for the offence under sections 307 and 326 of the Indian Penal Code and section 27 of the Arms Act. The said oral statement was recorded by Mr. Pramod Kant, Assistant Sub. Inspector of Town Police Station, Motihari and the same was sent to Govind Ganj Police Station at Motihari where formal first information report was registered on 19.8.1983 at 7 a.m. and investigation was taken up. On conclusion of investigation, the police submitted chargesheet against all the four named accused persons. The police paper was supplied to the accused persons in compliance of section 207 of the Code of Criminal Procedure. Thereafter, the case was committed to the court of sessions for trial and charges were framed against all the four accused persons who were sent up for trial for the offence under section 307/34 of the Indian Penal Code only. 6. At this stage, we would like to record that no separate charge for having committed an offence under section 326 of the Indian Penal Code has been framed by the court below against either of the appellants. It is curious to note that when there was no separate charge under section 326 of the Indian Penal Code as to how appellant no.2 would have been convicted and sentenced for the said offence which is not a minor offence than section 307 of the Indian Penal Code for which he was charged. Thus, we are of the view that the conviction and sentence 4 recorded under section 326 of the Indian Penal Code as against appellant no.2 would not have been legally recorded. The appellant no.2 has certainly been prejudiced as he had no opportunity to defend himself for the said offence in absence of any charge having been framed against him under section 326 of the Indian Penal Code. 7. P.W.1, Gyan Prakash, is brother of the informant. He has narrated the facts stated in the first information report in his examination- in-chief. In cross examination he admits that P.W.3, Shashi Bhushan Prasad, is his cousin and father-in-law of appellant no.1 and father of P.W.1 are brothers. P.W.2, Jawahar Lal Prasad, also claims to be an eye witness to the occurrence and has supported the contents of the first information report. In cross examination he admits that his niece (Bhagni) is married to P.W.3, Shashi Bhushan Prasad. P.W.3, Shashi Bhushan Prasad is none else but the persons with whom the appellants had dispute regarding ownership of the tree. He also claims to be an eye witness to the occurrence. P.W.4, Shiv Kumar Prasad, is informant as well as one of the injured of this case. He has identified his signature on fardbeyan which is marked as Ext.1. In cross examination he has stated that he received injury on his person by bullet. He has gone to the extent of saying that as a result of fire arm injury part of muscle had been torn and detached and had fallen on the ground. He says that at that point of time he was wearing a lungi and Ganjee. According to him the Lungi got stained with blood. He further says that Shobha Kumari (P.W.6), his daughter, had also received injury almost at the same place and blood had fallen on the ground. He further says in his deposition that he did not remember as to whether bullet or pellet was recovered either from his body or from the person of 5 Shobha Kumari. He further depose that X-Ray was conducted for the injury caused upon his person and X-Ray was also done as per medical advice on the person of P.W.6, Shobha Kumari. P.W.6, Shobha Kumari is daughter of the informant. She is another injured of this case. In her deposition she says that both the injured were taken to Malahi hospital and after initial treatment they were referred to Motihari Sadar Hospital. She says that she was admitted in the hospital and continued confined to bed for one month at Motihari. She also stated that blood had fallen at the place where she sustained fire arm injury. P.W.8, Awadhesh Chaubey, is a police officer who had conducted investigation of this case. In his deposition, he has stated that on 19.8.1983 he was posted at Govind Ganj Police Station. He received an oral statement from town police station which contained oral statement of the informant. He identified the fardbeyan which was marked as Ext.2. He further submits that on the basis of fardbeyan a formal first information report was registered which was marked as Ext.3. He has stated that he conducted investigation, inspected the place of occurrence, recorded further statement of the informant and other witnesses and submitted chargesheet. In cross examination he has categorically stated that he inspected place of occurrence on 19.8.1983 itself. P.W.9, Balbhadra Prasad has stated that on being called by “Panch” Ram Sagar Singh (P.W.7), Shiv Kumar Prasad (P.W.4) came and on enquiry Shiv Kumar Prasad stated that “Shisham” tree in question belonged to Shashi Bhushan Prasad (P.W.3). He further stated that Shiv Kumar Prasad started altercating with the appellants. They went to their house. He has stated that appellant no.1 was standing at his door being armed with gun. Thereafter, appellant no.2 took the gun from his father 6 and went to the roof of the house and from their he fired twice causing injury to Shobha Kumari (P.W.6) and Shiv Kumar Prasad (P.W.4). In his cross examination he has also admitted the fact that appellant no.1 is brother-in-law of his step brother. It would be relevant to record here that this witness though supported the incident of firing by appellant no.2, but has given a different version to that of other eye witnesses. It is to be noted that other witnesses have stated that appellant no.1 also went together with appellant no.2 and co-accused Ashok Kumar on the roof of the house whereas this witness is categorical in saying that appellant no.1 continued to remain at his door and appellant no.2 alone went to the roof of the house. 8. Now, we take the evidence of the doctor (P.W.10), who had examined the two injured on 19.8.1983 itself at 12.30 a.m. The doctor has recorded following injury on the person of Shobha Kumar (Ext.4). “A lacerated, scorched, inverted wound with bleeding from the base of rt. great toe to almost whole length of sole and fracture of the bone of great toe in many pieces. Nature- grievous, age- within 3 hours, weapon used- fire arms. X-Ray shows fracture of the bone of great toe.” 9. He has proved injury report which has been marked as Ext.4. On the same day and at the same time he has also examined other injured who is informant of this case, Shiv Kumar Prasad (P.W.4) and on examination he noticed the following injury on his person: “A lacerated, scorched, inverted wound of size 3”x 2”x muscle deep with bleeding. Nature-Simple, age within 3 hours, weapon used- fire arms.” The injury report of Shiv Kumar Prasad (P.W.4) has been 7 proved by P.W.10 and marked as Ext.4/A. The doctor was cross examined on behalf of the defence. He has stated in his cross examination that he did not remember as to whether injured were admitted in hospital or not. He could not say as to whether their names were entered in the hospital register or not. He did not remember as to whether he had treated the injured (P.W.4 and P.W.6) or simply issued injury report. He has admitted the fact that it is not written on his certificate as to whether he had advised for X-Ray or not. However, he deposed that it was written that fracture can be noticed from X-Ray report. He has admitted that requisition by police for examination of P.W.6 was of 19.8.1983 but his report was of 22.8.1983. He could not say regarding where-about of Shobha Kumari, P.W.6 in between 19.8.1983 and 22.8.1983. He has also admitted the fact that he did not remember as to whether the injured persons ever met him after 19.8.1983. He further admitted that there is nothing in his report as to whether bullet or pellet was found embedded or taken out from the person of the injured. He could not say as to whether injuries were caused by bullet or pellet. 10. The trial court on the basis of aforesaid deposition of witnesses though acquitted two of the co-accused, namely, Ashok Prasad and Bhagirathi Devi @ Saraswati Devi but held the appellants guilty of the offence and sentenced them as stated above. We have appreciated the evidence in detail. 11. It is submitted that though there is evidence that more than 50 persons were present when incident of firing took place but the witnesses examined in court are related and interested witnesses. In our view, this cannot be a ground to discard the evidence of related and 8 interested witnesses if they claim to be eye witness of the occurrence. The law is well settled that the evidence of such witness has to be weighed with care and caution. Learned counsel for appellants has further argued that though there is evidence that the injured persons were first taken to hospital situated at Malahi but no chit of paper has been filed in order to show that they received any treatment at Malahi. His further contention is that the doctor who examined the informant has not given his finding as to on which part of the body he sustained injury. The injury report is quite vague. He also drew the attention of the court that there is nothing on the record to suggest that the injured persons were referred from Malahi to Sadar Hospital, Motihari. It is curious to note that if they had first visited the hospital at Malahi than as to why police was not called by the doctor in order to record the oral statement of the injured. He further contends that the injured Shobha Kumari (P.W.6) though claimed to have been examined on 19.8.1983 but from Ext.4/A it does not transpire that the doctor noticed any injury on her person on 19.8.1983. The injury report of Shobha Kumari (P.W.6) is under signature of P.W.10 which is dated 22.8.1983. He also submits that nature of injury is said to be grievous on the basis of X-Ray report but no X-Ray report is there on record. The doctor (P.W.10) has also not been able to explain regarding existence of X-Ray before him when he prepared injury report. 12. Learned counsel for appellants has also drawn the attention of the court towards the fact that Assistant Sub. Inspector of Police, who recorded oral statement of the informant has not been examined. According to him, independent witnesses including Assistant Sub. Inspector of Police, who recorded fardbeyan first have purposely 9 been withheld by the prosecution and thus an adverse inference in terms of Section 114(g) of the Evidence Act would be drawn against the prosecution. 13. The defence of the appellants is of total denial of the occurrence. Their main defence is that in order to get rid of accused persons from village they have falsely been implicated as appellant no.1 happens to be son-in-law of the agnates of the member of prosecution party. Their further defence is that none of the injured had received any injury. 14. We have heard the parties and noticed the following facts.: (i) No chit of paper has been produced in course of trial to show that injured were first treated at Malahi and then referred to Sadar Hospital, Motihari as narrated by the injured Shobha Kumari (P.W.6). (ii) There is nothing on the record to show that that the injured Shobha Kumari (P.W.6) was confined to bed and continued in hospital for one month. (iii) Assistant Sub.Inspector of Police, Pramod Kant, of Town Police Station, Motihari, who recorded fardbeyan initially has not been examined. (iv) The witnesses to the first information report, namely, Dharamnath Singh and Rameshwar Yadav have not been examined in course of trial. (v) The “Panch” Ram Sagar Singh, who is only independent witness apart from official witnesses, has been declared hostile and another “Panch” Rudradhar Dubey, who is named in the first information report has not been examined in course of trial. (vi) The prosecution witnesses, 1, 2,3,4,6 and 9 are all related to each other and they come within category of interested witnesses. (vii) Though, there is evidence of presence of large number of independent witnesses at the place of occurrence, but no such witness has been examined on behalf of the 10 prosecution. (viii) The police conducted search of the house of the appellants immediately after matter was reported to it but no fire arm was found or seized. (ix) The Investigating Officer investigated the place of occurrence on the date of occurrence itself, but he categorically stated that no sign of firing could be noticed on physical verification of the place of occurrence. (x) No blood stain was found at the place of occurrence though witnesses say that injuries caused resulted in profuse bleeding at the place of occurrence. (xi) No blood stained cloth was either seized by the police or handed over to the police by the injured nor the same was produced in course of trial. (xii) The injury report given by the doctor in case of the informant is quite vague. (xiii) There is no explanation as to why the part of body where the injury was found on the person of the informant has not been mentioned in the injury report. (xiv) The injury report in case of Shobha Kumari (P.W.6) does not inspire any confidence as though the doctor claims to have examined her on 19.8.1983 but the same was issued on 22.8.1983. (xv) No explanation has been given with regard to delayed issuance of injury report. (xvi) No X-Ray report to support the finding of the doctor has been brought on behalf of prosecution on record. (xvii) Nothing has been brought on record to corroborate the fact that the injured Shobha Kumari was ever admitted in hospital. (xviii) The doctor (P.W.10) did not remember that he ever treated the injured i.e. P.W.4 and P.W.6. (xix) The doctor could not say as to whether any pellet or bullet was found embedded or taken out from the person of the injured. (xx) There existed strong motive for false implication as 11 the appellants belong to other place and appellant no.1 had inherited the property of his father-in-law who was agnate of the members of the prosecution party. (xxi) The order of conviction under section 326 of the Indian Penal Code could not have been passed in exercise of powers conferred under section 222(2) of the Code of Criminal Procedure. 15. Thus, we have no hesitation in holding that the objective finding of the investigating officer is tilted more towards innocence of the appellants than probability of guilt. The medical evidence does not inspire any confidence. The oral testimony of the injured witnesses has not been corroborated by the medical evidence. 16. Having considered the facts of the case, appreciated the evidence on record and after hearing the parties, we are of the opinion that the prosecution has failed to bring home the charges levelled against the appellants beyond reasonable doubt. The order of guilt and sentence with respect to both the appellants recorded by the trial court is hereby set aside. The appeal stands allowed. The appellants are discharged from their liability of bail bonds furnished in the court below. Patna High Court The 10th August, 2011 Md.S/N.A.F.R. (Navaniti Prasad Singh, J.) ( Ashwani Kumar Singh, J.)