Criminal Appeal (SJ) No.28 of 1999 **** Against the judgment, dated 01.02.1999, passed by Shri Abhaishankar Prasad, Sessions Judge, Vaishali at Hajipur, in S. Tr. No. 64 of 1994 **** 1. Haricharan Ram, aged about 60 years 2. Shiv Nandan Ram, aged about 40 years, both sons of late Ram Patna Ram 3. Ramesh Ram, son of Haricharan Ram, All residents of village Haribanshpur, P.s. Bhagwanpur, district Vaishali .. Appellants Versus The State of Bihar .. Respondent **** For the Appellants .. M/S Ram Sagar Mahto & Manohar Manuj, Advs. For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the State. 2. The appellants have been convicted under Section 304 part II of the Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case, as alleged, is that the informant, Ram Naresh Upadhyay on 01.07.1992 at about 07.00 a.m. while his son, Birendra Upadhyay, asked his younger brother, Binod Upadhyay, 2 that the licensed double barrel gun has to be taken to Hajipur for the inspection/evidence of Sub Divisional Officer for it’s entry in the record, then Binod Upadhyay proceeded with the gun. When he reached near the house of Birmal Ram and Haricharan Ram, they surrounded him and started snatching the gun, on hulla the co- villagers, Jatinder Singh, Baleshwar Singh, Ram Janam Singh and others came to their rescue by then two cartridges had been snatched by the accused persons. Birbal Ram was produced before Bhagwanpur Police Station and Birendra Upadhyay proceeded to Hajipur. It is, further, case that while Birendra Upadyay was returning back from Hajipur to his home reached near the darwaza of Haricharan Ram, at about 03.00 p.m. on his motorcycle, then Haricharan Ram, Ramesh Ram and Shiv Nandan Ram apprehended and surrounded him. Haricharan Ram gave three blows of iron dab on the head and Ramesh Ram and Shiv Nandan Ram, who were armed with hasuli, gave three hasuli blows on the right hand, left shoulder and palm of Birendra Upadhyay. He raised hulla, on which Kari Sah (P.W. 1), Ranjeet Kumar Upadhyay (P.W. 2) and Dhunu Singh (not examined) and others came and protested the assault, but, by that time Birendra Upadhyay got injured and became unconscious. He was taken to emergency ward of Patna Medical College Hospital where he died during the treatment. 4. Fardbeyan was recorded by Assistant Sub Inspector of Police, R.N. Singh of Pirbahore Police Station on 02.07.1992 at Patna Medical College Hospital and sent to Bhagwanpur Police Station, 3 Hajipur, for necessary action and a case bearing Bhagwanpur P.S. Case No. 64 of 1992 has been registered, thereafter, the investigation proceeded. After investigation the police submitted charge sheet and after taking cognizance the case committed to the Court of sessions. After commitment the charge was framed for offence under Section 304/34 of the Penal Code against all the three accused persons, who are appellants and, thereafter, the trial proceeded. 5. During the trial only three witnesses were examined. P.W. 1, Kira Sah, has turned hostile having not supported the prosecution case, P.W. 2, Ranjeet Kumar Upadhyay, is the son of the deceased and P.W. 3, Ram Naresh Upadhyay, is the informant and father of the deceased. Neither the investigating officer nor the doctor has been examined in this case. 6. The documentary evidence proved in the case are Exhibit 1, the signature of Ram Naresh Upadhyay on the fardbeyan, Exhibit 2, post mortem report, however, the doctor has not been examined, Exhibit 1/1, signature of Ranjit Kumar on the carbon copy of the inquest report, Exhibit 3 is the seizure list and Exhibit is the case diary. The case diary, seizure list, inquest report, signature on inquest report and the case diary has formally been proved by P.W. 2, said to be in the writing of Ramashankar Singh. From the order sheet, dated 30.06.1998, it is apparent that a petition was filed by the Public Prosecutor along with the post mortem report with a prayer to recall the defence for examining the genuineness of the post mortem report under Section 294 of the Criminal Procedure Code. The learned 4 defence lawyer denied the genuineness of the post mortem report, but, even then the post mortem report has been marked Exhibit 2 is against the requirement of law. A document can only be marked Exhibit under Section 294 of the Criminal Procedure Code if the defence or both sides admits the genuineness of the document, but, not if other side does not accept the same and, hence, the trial Court, taking into consideration the evidence of the witnesses, i.e., P.Ws. 1 and 2 that they have supported the prosecution case, convicted the appellants on the evidence of P.Ws. 2 and 3. 7. The learned counsel for the appellants, however, contended that P.Ws. 2 and 3 are the father and son of the deceased. They are interested witnesses and claimed that they reached at the place of occurrence at the same time when the deceased has reached at the place of occurrence. Hence, P.Ws. 2 and 3 are only the chance witnesses and there is contradiction in the evidence of P.Ws. 1 and 2 whereas P.W. 2 has stated, in his evidence, that he reached along with his grandfather while they were returning from Bhagwanpur Bazar whereas P.W. 3 the grand father in his statement has stated that they reached there separately when the occurrence took place. In the evidence it has come that at the time of occurrence several persons said to have been present at the place of occurrence at the time of occurrence, but, none has come to support the prosecution case and, hence, the prosecution case becomes doubtful. The doctor and investigating officer has also not been examined, it can well be said that the prosecution has not been able to prove the charges beyond 5 reasonable doubts by cogent, reliable and unimpeachable evidence. 8. However, I proceed to consider the evidence, including submission. The prosecution case, as alleged in the fardbeyan by the informant that on the date of occurrence in the morning there was some dispute with reared to the snatching of the gun and cartridges. One Birbal Ram was caught and produced before Bhagwanpur Police Station and, thereafter, at 03.00 p.m. while his son was returning from Hajipur Court to his village then the occurrence took place and on hulla several persons of the village collected and it is alleged that Dhunu Singh (not examined), Kira Sah (P.W. 1) and Ranjeet Kumar Upadhaya (P.W. 2) had come there, but, till then the injured become unconscious due to his injuries. However, there is no mention that the victim came along with P.W. 2. Three persons have been named in the fardbeyan of the witnesses who came on hulla. P.W. 3, the informant, in his evidence, has stated that he was returning from Bhagwanpur Bazar to his house and his son, the deceased, was returning from the Court who works as karpardar. P.W. 3 identifies the accused in the dock and has stated that he is unable to see from a long distance. However, he has stated that he, perhaps, has stated that at the time of occurrence, Ranjeet Kumar Singh was also there. He has, further, stated that he has not stated that as soon as his son reached there, the accused persons surrounded him. However, P.W. 2 in his evidence has stated that at the time of occurrence he was returning along with his grandfather (P.W. 3), Ramnaresh Upadhaya from Bhagwanpur Bazar and the occurrence took place. However, 6 having regard to the fact there is contradiction in the prosecution story stated in the fardbeyan as well as P.Ws. 1 and 2 are only a chance witness. However, P.Ws. have stated that at the time of occurrence several persons came, but, none has come to support the prosecution case. Investigating officer has not been examined and even the post mortem report marked as Exhibit 2 is not admissible as the same marked as Exhibit 2 under Section 294 of the Criminal Procedure Code even when defence denied the genuineness of Exhibit 2 and in evidence and several interpolations are there. Hence, Exhibit 2 can not be read in the evidence as has not been exhibited on the acceptance of the defence. 9. Hence, having regard to the facts and circumstances that only evidence adduced in the case is the evidence of P.Ws. 2 and 3 and their presence at the place of occurrence appears to be doubtful and their evidence suffer from contradiction to each other and is not corroborated by any other evidence, even the medical evidence has not been proved to corroborate. More over, P.W. 2, in his evidence, has stated manner and the motive of the occurrence alleged is the licensed gun, which was being taken for verification, but, P.W. 2, in his evidence, has stated that the licence was in the name of his uncle, Binod Upadhaya, and the verification of the licence had already been taken place 2 to 3 days earlier of the occurrence, hence, the prosecution case belied the evidence of P.W. 2, in his cross examination, dated 19.09.1994, hence, neither the motive has been established nor the post mortem examination nor the injury on the 7 person of the injured has been established, hence, I find and hold that the prosecution has not been able to prove the charges level against the accused persons beyond reasonable doubts. 10. Hence, the order of conviction and sentence, recorded by the lower Court, is hereby set aside and the appeal is allowed. The appellants are discharged from the liabilities of their bail bonds. ( Gopal Prasad, J. ) The Patna High Court, The 16th day of December 2011, N.A.F.R., S.A.