CRIMINAL APPEAL No.95 OF 2007 MANOJ KUMAR SINGH @ MANOJ SINGH, Son of Jai Prakash Singh,resident of Village- Kendua, P.S. Mufassil, District-Nawadah -----------------------------------(Appellant) Versus STATE OF BIHAR --------------------------------------------(Respondents) WITH CR. APP (SJ) No.983 oF 2006 1. JAI PRAKASH SINGH Son of Late Siya Ram Singh 2.Tanik Singh, Son of Late Mundrika Singh Both are resident of Village-Kendua, P.S. Mufassil Nawadah, District-Nawadah -------------------------------------------(Appellants) Versus STATE OF BIHAR ---------------------------------------(Respondents) --------------- Against the Judgment of conviction and order of sentence dated 27.11.2006 and 28.11.2006 respectively passed by Sri Arun Kumar Singh, Addl.Sessions Judge,F.T.C.II, Nawadah in Sessions Tr.No.226 of 1996 /140 of 2003 arising out of Mufassil P.S. Case No.13 of 1996 G.R.Case No.283 of 1996 P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH For the Appellants : Miss Fauziashabil, Advocate For the State : Mr. Jharkhandi Upadhaya,A.P.P -------------- Anjana Prakash,J The present appeal is directed against the Judgment of conviction dated 27.11.2006 and order of sentence dated 28.11.2006 passed by the Additional District & Sessions Judge, F.T.C.No.II, Nawadah in - 2 - S.Tr.No.226 of 1996 /140 of 2003, whereby the appellants Manoj Singh, Jai Prakash Singh and Tanik Singh have been convicted under Section 307 of the Indian Penal Code and sentenced F.I. for seven years and further Manoj Singh is being convicted under Sections 380 of the Indian Penal Code and 27 of the Arms Act and sentenced to 6 months and one years R.I. respectively. Appellants Jai Prakash Singh and Tanik Singh have also been convicted for offence under Section 452 of the Indian Penal Code and sentenced to R.I. for six months along with appellant Manoj Singh. 2. The prosecution case, according to P.W.3- Amresh Singh, is that in the night of 24/25-2-1996, accused persons entered into his house and thereafter shot at his brother’s wife, namely, Baby Devi, due to which she was seriously injured and thereafter she was removed to the Hospital for treatment. The appellants were identified while fleeing away from the place of occurrence. After investigation, police submitted chargesheet and the present appellants were put on trial. They were charged for offences punishable under Sections 452,307,380/34 of the - 3 - Indian Penal Code and 27 of the Arms Act. 3. During trial, the prosecution examined eight witnesses , out of whom P.W.1-Sanjay Singh is the neighbour of the informant, P.W.2- Kishori Singh and P.W.6 Sunaina Devi , are the family members of the informant.P.W.3-Amresh Singh is the informant himself and P.W.7 Baby Devi is the injured , whereas P.W.8-Lalit Mohan is the formal Investigating Officer who has submitted chargesheet. 4. The submission of the learned counsel for the appellants is that there is enmity between the parties and the appellants being the next-door neighbours were not expected to have committed the offence as alleged and also that no offence under Section 307 of the Indian Penal Code is made out in the facts of the case. The further submission is that there is no medical corroboration of the injuries having been sustained by P.W.7 Baby Devi since the Doctor has not been examined by the prosecution. The appellants have also been prejudiced by the non- examination of the Investigating Officer since there are many contradictions in the evidence of the witnesses and - 4 - there was a history of previous enmity between the parties and also the source of identification could not be pin pointed. 5. The learned lawyer for the prosecution has however contended that the prosecution has discharged his duty in proving the case beyond all reasonable doubts and the witnesses are trustworthy and merely on account of there being enmity between the parties the same does not entitle the appellants to be acquitted of the charges. 6. On perusal of the evidence, this Court finds that P.W.3-Amresh Singh has not stated anything about theft having been committed from the person of the injured and others in the First Information Report and the story of snatching of jewellery etc.appears to be an embellishment, concocted later on to make the case serious. 7. From the facts of the case, it further appears that P.W.7-Baby Devi has alleged that she identified the appellants in the light of Diya, which identification is highly doubtful in view of the fact that the Investigating Officer has not been examined to substantiate the presence of such sourse of light . Moreover, P.W.7 in paragraph-3 - 5 - has also stated that there was no source of light. In the circumstances, identification of the present appellants appears to be highly doubtful. If the prosecution had merely stated that they had identified but did not specify the source of light it would be another matter. But once the prosecution’s specific assertion is that the source of identification was a ‘Diya’ it was its bounden duty to prove the presence of the same through an independent agency. In absence of the examination of the Investigating Officer there is no independent corroboration of the same and therefore the question of identification becomes highly doubtful. 8. Moreover, the entire case speaks of the assault having been made when the appellant Manoj Singh tried to extricate himself from the clutches of P.W.7-Baby Devi and, therefore, no offence under Section 307 of the Indian Penal Code also would be made out, since the intention of the appellant Manoj Singh , if at all, was certainly not to kill but to extricate himself as per the prosecution case itself. 9. In the present case, the factum of enmity - 6 - between the parties is an admitted fact and the entire prosecution case has therefore to be viewed from the prospective of previous enmity while assessing evidence of the prosecution witness. On this touch-stone, the evidence of the witnesses does not appear to be completely trustworthy on the point of involvement of the present appellants in the occurrence. In the result, both the aforesaid appeals are allowed and the Judgment of conviction and sentence is set aside and the appellants are discharged of the liability on their bail bonds. The appellant Manoj Singh who is in custody is directed to be released from custody forthwith, if not wanted in any other case. ( Anjana Prakash,J) Patna High Court,Patna Dated: the 12th October,2009 Nawal Kishore Singh/NAFR