CRIMINAL APPEAL No.122 OF 1993 (Against the Judgment of conviction dated 28.4.1993 and Order of sentence dated 3.5.1993 passed by Sri Swaroop Lal, 9th Additional Sessions Judge, Patna in Sessions Trial No.874 of 1989). ……….. 1. NAGENDRA SINGH, SON OF RAM BALAK SINGH. 2. DHARMENDRA SINGH, SON OF SRI NAGENDRA SINGH. BOTH RESIDENTS OF VILLAGE MAHAMMADPUR, P.S. DHANARUA, DISTRICT-PATNA……….(ACCUSED)……………………………….APPELLANTS. Versus THE STATE OF BIHAR……………………………………………….RESPONDENT. ……… For the Appellants : Mr. Ranjeet Kumar, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ………. P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha,J: This appeal by the two accused of Dhanarua P.S. Case No.146 of 1988 giving rise to Sessions Trial No.874 of 1989 has been preferred against the judgment of conviction dated 28.4.1993 and order of sentence dated 3.5.1993, passed therein by Sri Swaroop Lal, then then 9th Additional Sessions Judge, Patna, whereby both the appellants have been convicted of offence under Section 307 I.P.C. read with Section 34 I.P.C. and appellant, Nagendra Singh, has further been convicted for offence under Section 27 of the Arms Act and whereas both the appellants have been sentenced to undergo rigorous imprisonment for 10 years each - 2 - for offence under Section 307 I.P.C. read with Section 34 I.P.C., appellant, Nagendra Singh, has further been sentenced to undergo rigorous imprisonment for 5 years under Section 27 of the Arms Act. 2. The prosecution case is founded on the fardbeyan of the informant, Om Bhagwan Singh, given at 1.30 P.M. on 15.11.1988 for an occurrence which allegedly took place at 4 P.M. on 14.11.1988. According to the informant, on the preceding evening as he was irrigating his fields by means of a pumping set, a small hole had appeared in the pipe and the leaking water therefrom trickled onto the adjacent fields of Nagendra Singh and Dharmenra Singh and as such their fields also became wet. It is also alleged that both Nagendra Singh and Dharmendra Singh came upon their fields and questioned the informant as to why he had taken the pipe through their lands whereupon the informant retorted by saying that you too irrigate your fields through pipe passing over my lands. Thereafter the informant with the help of his brother, Jagat Singh, removed the pumping set to another place where Nagendra and Dharmendra, armed with pistols, also arrived and even as Nagendra was about to fire from his pistol at the informant, he caught hold of the pistol with his left hand but even then firing took place which caused injury to the left hand of the informant and he fled therefrom. Hearing the sound of gun fire many persons of the village arrived and the informant thereby was saved. The cause for the occurrence is said to be land dispute - 3 - amongst them which was presently pending in the High Court. 3. After due investigation the police submitted a chargesheet under Sections 307, 324, 323/34 I.P.C. against both the accused. After commitment of the case to the court of sessions charge under Sections 307/34 I.P.C. was framed against both the accused and accused Nagendra Singh was further charged for offence under Section 27 of the Arms Act. 4. At the trial the prosecution in support of its case examined as many as many as 3 witnesses, one of whom was a formal witness and also adduced some documentary evidence. 5. The defence plea if one of innocence and false implication. 6. It appears that apart from the formal witness examined by the prosecution, two other witnesses examined are the informant himself (P.W.1) and his brother, Jagat Singh (P.W.2). P.W.3, the formal witness, Ramashish Singh, has proved the F.I.R. (Ext.2) and pages 1 to 52 of the case diary (Ext.3). This witness has also proved the injury report of the informant which has been marked as Ext.4. 7. P.W.1, the informant and his brother, Jagat Singh (P.W.2) have naturally supported the prosecution case and have also stated that two witnesses who had seen the occurrence, namely, Anil and Samerendra, had been gained over and as such they had not come to depose in favour of the prosecution. The learned trial court on placing reliance on the evidence of the two - 4 - witnesses and the formal witness came to a finding that the prosecution had been able to prove its case and, therefore, convicted the two accused under Section 307 read with Section 34 I.P.C. and also convicted accused Nagendra Singh under Section 27 of the Arms act. 8. The grievance of the appellants is that the learned trial court without giving proper consideration to the materials available on record had convicted them on extraneous considerations. In this connection, it was sought to be submitted that admittedly, the occurrence took place at 4 P.M. on 14.11.1988 and the fardbeyan was recorded only at 1.30 P.M. on the following day after the informant had walked to the police station which was at a distance of 40 Kosh. It was also submitted that the learned trial court failed to take into consideration the fact that both the brothers had stated that the informant on sustaining injury did not get himself treated either by a doctor or at the hospital and it was only after the recording of the fardbeyan that the informant got himself treated on the advice of the police and the treatment continued only for 15 minutes. It was also submitted that the non-examination of the Investigating Officer had prejudicially affected the defence case as the objective findings of the Investigating Officer could not be brought on record and the very basis of the prosecution case, the fardbeyan of the informant, though not a substantive piece of evidence and is to be used for the purposes of corroboration and contradiction, had not been brought on record legally since the - 5 - author thereof , namely, the I.O. had not proved the same and would have a fatal effect on the prosecution case. Even the injury report and the case diary were sought to be proved by a formal witness who was not aware of the contents thereof. 9. There appears sufficient force in the submissions advanced by the learned counsel for the appellants. Admitteldy, there exists enmity between both parties and apart from the informant and his brother, no independent witness has come forward to support the prosecution case and the plea of false implication, as taken by the defence, appears to be true since the informant and his brother had good reasons to implicate the accused. The discrepancies in evidence of the two brothers have not been corroborated by independent witness. Non examination of the Investigating Officer has resulted in the failure of the prosecution case since the defence could not get a chance to prove the material contradictions in the depositions of the witnesses and certain material facts could not be brought on record due to the non examination of the I.O. 10. That apart although the claim of the informant and his brother is that the informant sustained fire arm injury in his left palm, the injury report (Ext.4) narrates another story which completely belies the prosecution case. The injury report (Ext.4) has been proved by a formal witness and, therefore, it cannot be looked into legally but since the defence has raised the plea of false implication and the court basing it’s findings on extraneous - 6 - consideration, I have ventured to look into the injury report (Ext.4). 11. The informant was examined at 3.45 P.M. on 15.11.1988 and the doctor found two injuries, namely, (1) lacerated wound 2” x 1/2” x 1/2" between thumb and index finger of left hand and (2) swelling 2” x 2” corresponding to injury no.1. In the opinion of the doctor both the injuries were simple in nature and caused by hard and blunt substance. If the story of the informant and his brother, Jagat Singh (P.W.2) is to be believed then there ought to have been charring and tattooing marks on the left palm of the informant since according to them the pistol had fired causing injury to the left palm of the informant. Non examination of the I.O. and doctor as also the other independent eye witnesses who were present at the scene of the occurrence goes against the prosecution and it cannot be said with certainty that the prosecution has been able to prove its case beyond all reasonable doubts. 12. In the result, the appeal is allowed and the judgment of conviction and order of sentence are hereby set aside. Both the appellants are on bail granted vide order dated 26.5.1993 of this Court. They are discharged from the liabilities of their respective bail bonds. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 12th day of August, 2009. Pradeep Srivastava/A.F.R.