CRIMINAL APPEAL No.95 OF 1998 Against the judgment and order dated 13.2.1998 passed by 3rd Additional Sessions Judge, Siwan in Sessions Trial No. 90 of 1997. DAHARI MIAN, son of Jalil Mian, resident of Hardiya, P.S.- Pachrukhi, District- Siwan--------Appellant Versus STATE OF BIHAR--------------------------------------------------Respondents For the Appellant :- Mr. R.N. Jha, Amicus Curiae For the State :- Mr. S.N. Prasad, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. Nobody appears on behalf of the appellant and as such this Court appoints Mr. R.N. Jha to appear Amicus Curie in this appeal. The sole appellant has challenged the order of conviction under Section 307 of the Indian Penal Code passed by 3rd Additional Sessions Judge, Siwan in Sessions Trial No. 90 of 1997 dated 13th February, 1998. The prosecution case in brief is that on 30.7.1996 Nasir Mian was returning from Siwan after closing his shop and it is alleged that when he reached near the door of Dahari Mian, the appellant, Dahari Mian is said to 2 have given a ‘Chhura’ blow on the stomach of Nasir Mian. On ‘Hulla’ the wife and son reached the place of occurrence and took him to the Siwan Hospital for treatment on a ‘Rickshaw’. During trial nine witnesses have been examined in this case. Jagarnath Manjhi, P.W. 1 is not mentioned in the First Information Report as an eye witness to the occurrence. He claims that he was passing by when he saw Nasir Mian being attacked by the appellant with a ‘Chaku’. This witness admits that the appellant is the brother-in-law (‘Sala’) of Nasir Mian and that there is land dispute pending between them. Whereas P.Ws. 2, 3 and 4 have stated that they had not seen the actual occurrence rather they saw the appellant running away from the place of occurrence. All these witnesses are aware of the fact that there is a close relationship between the accused and Nasir Mian. They are also aware of the fact that there is a land dispute pending between appellant and the wife of Nasir Mian who are brother and sister with respect to a share in the property left by the father of the 3 informant and the appellant. From the evidence of P.W. 6, this Court could also come to know that the father of the appellant had given some property to the informant by a written document which according to this witness, the appellant has claimed as his own. All these witnesses appeared on the scene when Nasir Mian raised hue and cry. P.W. 4 specifically states that he was examined by the Investigating Officer after a gap of 15 days of the occurrence. Therefore, on the analysis of the evidence given by P.Ws. 1, 3 and 4, it would appear to this Court that their evidence is not free from suspicion for the reason that all of them seem to be closely associated with Nasir Ahmad, the injured and also because none of them except P.W. 1 claims to have seen the actual occurrence. P.W. 1 on the other hand has also stated that Nabi Hasan received some injury. A suggestion has been given on behalf of the defence that there was some hot exchange of words which resulted in scuffle and the informant taking advantage of this fact has filed this false case. 4 Nasir Ahmad, P.W. 5 is the injured persons in this case. He admits that there is a land dispute and the occurrence took place because of the land dispute. He further claims that he referred for treatment from Siwan to Patna Medical College & Hospital, Patna. He also submits that he remained at Patna for 15- 16 days and when he returned, the Investigating Officer took his evidence. I shall directly examine whether in fact P.W. 5 suffered a grievous injury so much so he had to be referred to the Patna Medical College & Hospital. First of all there is a serious lacuna in the case of the prosecution as the prosecution has not been able to bring on record the document to show that Nasir Ahmad was examined by a Doctor at Siwan and was referred to the Patna Medical College & Hospital. In fact there is not even a chit of paper to suggest that Nasir Ahmad was in fact examined by a Doctor at Siwan. The evidence that has come on record is the statement of P.W. 8, the Doctor who is supposedly a Professor of Surgery in the P.M.C.H. at Patna. 5 He claims to have examined Nasir Ahmad on 31.7.1996 and has found an incised wound measuring 1” in length and ½” in depth the doctor has described this wound as a protruding wound and claims that it was a grievous injury. At paragraph 6 he has stated that he has not mentioned that the injury was dangerous to life. He further states that he has issued the injury report in his private capacity. After pursuing the evidence and the injury report of Dr. R.A. Siddiqui I am of the opinion that the injury report and the opinion of Dr. Siddiqui is not at all reliable. I cannot see how an injury measuring 1” in length and ½” in depth could be considered to be an injury which is dangerous to life. Such wounds and injuries are possible in daily life at any time. A glaring aspect of this case is that the injury report and the oral evidence really do not support each other. According to the oral evidence ‘Chhura’ blow was inflicted in the stomach which according to the informant and others was so serious that Nasir Ahmad was rushed to Siwan and then referred to Patna. As stated earlier this aspect is not backed up by 6 any documentary evidence. Therefore, to me it appears that the entire case becomes doubtful. In this context I may refer evidence of the Investigating Officer and P.W. 9, Mannan Mian. The Investigating Officer has stated that he had arrested the appellant on the very next day of the occurrence while the appellant was going about his daily routine. As such it cannot be believed that a person who has committed a crime of this nature described in the First Information Report or by the witnesses in Court would be seen in the village following his daily routine. Again the evidence of P.W. 9 is relevant to the extent that P.W. 9 was named in the First Information Report as a witness and he has stated that he saw Nabi Hasan, Jagarnath Manjhi, P.W. 1 and Noor Alam, P.W. 2 had caught hold of the appellant at the time when the occurrence had taken place. The evidence of P.W. 9 support the suggestion given by the defence in support of their case that in fact there was a hot exchange between the parties which resulted in scuffle and taking advantage of this aspect, the First Information Report was lodged making 7 out a serious offence against the appellant. P.W. 7 the only witness who remains to be discussed. She is the wife of the injured Nasir Ahmad and it is because of land dispute with respect to property claimed by her that the occurrence is said to have taken place. There was an attempt during trial to get P.W. 7 examined on commission. She claims that she did not accompany her husband to Patna rather she went on the next day. This part of the evidence is directly conflict with the evidence given by P.Ws. 3 and 4 that the informant had not gone Patna to visit her husband. However, not much importance can be given to the fact because in view of the nature of the injury and the doubtful manner and the circumstances under which the report has been prepared. Learned counsel for the appellant has submitted on the basis of the oral evidence and the medical evidence which has come on record, it would be unsafe to convict the appellant under Section 307 of the Indian Penal Code on the facts described aforesaid. It has also been submitted that no offence under Section 307 of the Indian Penal 8 Code is made out as a single blow was inflicted on P.W. 5 which was not repeated despite the fact that there was no intervening circumstances to prevent the appellant from repeating the blow. Having considered the oral evidence and the medical evidence, I find that this is not a fit case in which conviction can be sustained as the prosecution has not been able to prove their case in its entire. Accordingly the conviction of the appellant is set aside and he is discharged of the liabilities of his bail bond. This Criminal Appeal is allowed. Patna High Court, April 9th, 2009 N.A.F.R./Sanjay (Sheema Ali Khan, J.)