Criminal Appeal (SJ) No. 15 of 1996 ****** Against the judgment and order dated 22.01.1996 passed by Shri Md. Ali, learned 2nd Assistant Sessions Judge, Khagaria in Sessions Case No. 194 of 1990. ****** Bijay Kumar Hissaria, Son of Shri Krishna Lal Hissaria, resident of Main Road, Khagaria, P.S. – Khagaria, District – Khagaria. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Mrs. Vimala Kumari, Amicus Curiae. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. No one appears on behalf of the appellant. Mrs. Vimala Kumari, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned amicus curiae and learned counsel for the State. 3. The appellant has been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for eight years and has further been convicted under Section 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. However, it has been ordered that both the sentences shall run concurrently. 4. The prosecution case as alleged in the fardbeyan of the 2 informant is that the informant at about 10:00 P.M. on 05.08.1989 proceeded along with his brother Krishna Kumar Sarraf (P.W. 7) and his Sala (brother-in-law) Keso Prasad Gupta (P.W. 1) and his Munshi Shankar Choudhary (P.W. 2), to take betel at the shop of Doman and while they were standing there on motor-cycle then another motor- cycle with three persons came out of which he identified one of them as Bijay Kumar Hissaria, the accused of this case. Other two culprits were unknown persons. One of the unknown culprits asked the informant to give money which was kept in the hand bag. The informant refused then the unknown culprits took out his pistol from his waist and pointed it on informant, thereafter Bijay Kumar Hissaria took out a dagger and gave dagger blow on person of informant and snatched away his handbag and fled away. The further case is that the person with informant made Halla on which some persons of nearby houses collected and took the informant on a rickshaw to local police station. The local police found the informant in serious condition hence they sent victim to the local hospital. The local hospital referred the victim to P.M.C.H., thereafter the family member of the victim proceeded to Patna. The further case of the prosecution is that in way to Patna at Mokama the condition of the informant became serious and got unconscious and then he was admitted at Nazarath Hospital, Mokama where he was treated. The further case is that the informant got 3 conscious on 08.08.1989 then the fardbeyan was recorded at Mokama Police at Nazarath Hospital, Mokama. 5. The fardbeyan was received at Khagaria on 09.08.1989 then the FIR was lodged for the offence under Section 394 of the Indian Penal Code. After investigation the charge-sheet was submitted, cognizance was taken and the case was committed to the Court of Sessions and the court of Sessions the charge was framed under Section 326 and 307 of the Indian Penal Code against the sole accused and trial proceeded. 6. During the trial ten persons were examined as witness who are P.W. 1 is Keso Prasad Gupta, P.W. 2 Shankar Choudhary, P.W. 3 is Doctor Satish Chandra Prasad, P.W. 4 is Doctor D. K. Sett surgeon in- charge, Nazarath Hospital, Mokama, P.W. 5 is Suresh Sarraf the informant, P.W. 6 is Bijoy Kumar Gupta Writer Constable in Khagaria Police Station who has proved Sanha Nos. 163 and 164, P.W. 7 is Krishna Kumar Sarraf the brother of the informant, P.W. 8 is Jogendra Prasad Singh, Sub-Inspector who has received the fardbeyan from Nazarath Hospital Mokama. On the basis of which Khagaria P.S. Case No. 294 of 1989 was instituted on 09.08.1989, P.W. 9 is Harkit Paswan Havildar of the Police who has proved the case diary, P.W. 10 is Borhan Baitha, S.I. of police who received the O.D. slip from Nazarath Hospital, Mokama. 7. The documentary evidence adduced is Ext. 1 and 1/1 are the 4 injury reports, Ext. 2 is signature of informant on fardbeyan, Ext. 3 is Sanha No. 163 of Khagaria P.S., Ext. 3/A Sanha No. 164 Khagaria P.S., Ext. 2/A is signature of Yogendra Singh on petition, Ext. 3/B Sanha No. 175 of Khagaria P.S., Ext. 4 O.D. Slip, Ext. 5 is petition filed before M.O., Ext. 6 is endorsement on the fardbeyan in the pen and signature of P.W. 8, Ext. 2/B is signature of P.W. 8 on the F.I.R., Ext. 7 is F.I.R. in the pen and signature of Ganesh Singh, Ext. 8 is Case diary of Khagaria P.S. Case No. 294 of 1989, Ext. 9 fardbeyan of the informant. 8. Learned amicus curiae submit that the occurrence took place on 05.08.1989 but the F.I.R. was instituted on 09.08.1989 on a pretext that the victim was unconscious. However, the victim was followed with three persons but none of them lodged FIR till 08.08.1989 the evidence of the doctor P.W. 4 shows that the victim was conscious and was not unconscious and hence no explanation has been given for delay in lodging of the case and it has been stated that the prosecution party after due deliberation falsely implicated the appellant due to enmity. It has further been contended that the second report by the doctor P.W. 4 is based on X-ray report but the X-ray report has not been proved and hence the finding that injury was grievous cannot be inferred in the absence of X-ray report. Hence, the prosecution has not been able to establish and hence the accused person is entitled to benefit of doubt. 9. P.W. 5 has supported the prosecution case that he went along 5 with the P.Ws. 1, 2 and 7 to take betel and there were three persons who came on motor-cycle and amongst them one was identified and they snatched the bag, gave a dagger blow and fled away and then Halla was made. The persons nearby came and he was sent on rickshaw to Khagaria Police Station and Daroga sent him to hospital on a jeep and his treatment was done in Khagaria hospital and then he found himself in Mokama Nazarath hospital where Daroga took his statement. 10. P.W. 1 is the Sala of this witness and has also supported the prosecution case regarding the occurrence and the informant was taken after occurrence or receiving injury by dagger to the hospital at Khagaria where he was treated and after some time it was disclosed that he was serious and taken into P.M.C.H. and so vehicle was arranged and Suresh Prasad Sarraf was taken to Patna but in way to Patna he has got serious and then admitted it at Nazarath hospital and has stated that the informant is his younger brother. However, in cross-examination he has stated that he has got his jewelry shop at Titagarh and used to come to his sister frequently and once in a year. This witness has also stated that one day prior to the occurrence he came to Khagaria from Titagarh and Suresh Prasad Sarraf used to take liquor. 11. P.W. 2 has also supported the prosecution case and has stated that in Khagaria hospital Suresh Babu remained for five hours but after one or so, it was disclosed that he was serious and then he was taken to 6 Patna. However, he has stated that he did not go with him to Patna and only Keshab Prasad and Krishna Kumar. 12. P.W. 7 was examined as a witness but after his examination he did not turn-up. 13. However, P.Ws. 1, 2 and 5 have supported the prosecution case and have stated that they were present at the time of occurrence and even they identified the victim from the place of occurrence. They went to the police station but the FIR was not lodged there. Thereafter they went to Khagaria hospital and they remained at Khagaria hospital. 14. P.W. 8 has stated that he received O.D. slip from Khagaria hospital and one A.S.I. Mr. R. Tiwary was deputed for sadar hospital, Khagaria and he went there and came back without recording the statement of the victim or any of the persons and recorded the station diary entry no. 164 dated 05.08.1998 in which it was stated that on account of unconsciousness and senseless stage of the injured his statement could not be recorded. 15. However, P.W. 3 is the doctor who examined the victim at Khagaria and found three incised injury (i) incised bleeding wound 1” x ¼” depth on the left side of the abdomen 1” below left costal border in anterior auxiliary line, (ii) incised wound with bleed 1-1/2” x ½” x skin deep on the back of left fore arm 2” below oleeramon process and (iii) incised wound with bleeding 1-1/2” x ½” x skin deep on the back of left 7 forearm ½” apart from injury no. ii. The doctor has reserved his opinion about the injury no. 1 till the report received from P.M.C.H and opined that the injury no. 2 and 3 are simple. 16. P.W. 3 in his evidence has stated that he cannot say whether the injured was unconscious or not and further in his cross-examination in para 14 (IX) in answer to a question stated that it is not written in the bed head ticket that the patient was unconscious. Hence it can well be inferred that the victim was not unconscious. However, neither the informant nor his associates gave any information or fardbeyan about occurrence or lodged FIR with regard to the occurrence on 05.08.1989 at Khagaria. It is stated that the victim was taken to Patna due to the seriousness in between the night of 05.08.1989 to 06.08.1989 and it is stated that in way to Patna patient got serious and so was admitted in Nazarath Hospital, Mokama. 17. P.W. 4 is the doctor who examined the informant on 06.08.1989 at 10:00 A.M. at the Nazarath hospital Mokama. However, he has stated that the patient was conscious and was restless due to injuries and has stated that the X-ray of the abdomen shows pocket of gas left upper abdomen and opined that injury no. 1 is grievous caused by long sharp object like dagger and the injury no. 2 is simple and in cross- examination has stated that he has not mentioned the depth of the injury no. 1 in injury report. He has further stated that normally no details of 8 the X-ray can be seen with X-ray. However, the X-ray report has not been proved and there is no basis to say that how the injury no. 1 was said to be grievous when the depth of the injury has not been mentioned. However, it is apparent from his evidence that the victim was conscious on 06.08.1989 at 10 A.M. However, no statement to lodge FIR has been recorded either by the informant or by his associates at Mokama on 6.8.1989 or 7.8.1989. 18. P.W. 1 and 7 were followed him from Khagaria to Patna on 6.8.1989 did not give statement to the police on 6.8.1989 or on 7.5.1989 rather the fardbeyan was recorded on 8.8.1989 by Mokama Police and which was sent to Khagaria police on the basis of which the FIR was lodged on 09.08.1989 at Khagaria bearing Khagaria P.S. Case No. 294 of 1989 and hence the explanation for the delay in lodging the FIR on the ground that the victim was unconscious is against the record. Moreover, P.Ws. 1 and 7 were following the victim but neither P.W. 1 nor P.W. 7 nor P.W. 2 lodged any case either at Khagaria or at Mokama till 08.05.1989. 19. Hence, having regard to the fact that there is delay of three days in lodging of the FIR and the explanation that the victim was unconscious, not found true and no explanation to substantiate in the mean time the injury no. 1 was manipulated at Mokama to be grievous and the name of the appellant came after three days of occurrence on 9 09.05.1989 cast a serious doubt about the false implication of the appellant. However, P.W. 7 did not turn up for cross examination and P.W. 1 is the Sala who is the resident of different place at Jaipur occasionally visited, but claims to have come on the date of occurrence itself cast a doubt about his presence at the time of occurrence. P.W. 7 did not turn up for cross-examination as he was in unconscious stage and three associates were attending before whom the occurrence is alleged to have taken place and hence taking into consideration the entire facts and circumstances, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt and hence the order of conviction recorded by the lower court is set aside and the appeal is allowed. 20. Mrs. Vimala Kumari, shall be supplied a copy of this judgment and she shall be entitled for the fee of hearing payable by High Court, Legal Services Committee, Patna. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 14th July, 2011. N.A.F.R./Kundan.