1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - - - Against the judgment of conviction and order of sentence dated 16.7.2010 and 17.7.2010, respectively, passed by 3rd Additional Sessions Judge, Gopalganj, in Sessions Trial No. 368 of 2004/192 of 2009. - - - - Criminal Appeal (SJ) No.702 of 2010 1. Chandan Singh 2. Ajay Singh @ Ajay Kumar Singh both sons of Chandrama Singh 3. Chandrama Singh, son of late Sudish Singh All residents of village Sidhwalia, P.S. Mohammadpur, District Gopalganj .... .... Appellants Versus The State Of Bihar .. .... Respondent with Criminal Appeal (SJ) No. 766 of 2010 Vijay Singh @ Vijay Kumar Singh, son of Chandrama Singh, resident of Village Sidhwalia, P.S. Mohammadpur, District Gopalganj .... .... Appellant Versus The State Of Bihar .... .... Respondent Appearance : (In both the appeals) For the Appellants : Shri Rana Pratap Singh, Sr.Adv. Shri Arun Kumar Singh, Adv. Shri Rana Vikram Singh, Adv. Shri Jeetendra Narayan,Adv. For the Respondent : Shri Ajay Mishra, Addl. P.P. (In both the appeals) : P R E S E N T THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- These two appeals arise out of the judgment dated 16.7.2010 passed by the learned 3rd Additional Sessions Judge, Gopalganj, in Sessions Trial No. 368 of 2004/192 of 2009 by which appellant Vijay Singh was held guilty of committing an offence under Section 307 of the Indian Penal Code whereas other appellants who have preferred Cr. Appeal No. 702 of 2010(SJ) were found guilty of committing the same offence under Section 307 of the Indian Penal Code by virtue of Section 2 34 thereof. As regards the sentence, after hearing them on 17.7.2010, the learned trial Judge directed each of the appellants of the two appeals to suffer rigorous imprisonment for seven years. The two appeals have been brought before this Court by the appellants to question the correctness of the finding and propriety of sentence. 2. It appears from the fardbeyana of P.W. 3 Sanjiv Kumar Singh recorded on 11.4.2001 that the appellants came variously armed at the house of the informant to enquire of him as to why he had cut the ridge of the field of the appellants. The informant replied that he had not cut their ridge, rather, had dressed up his own ridge upon which appellant Chandrama Singh is alleged to have ordered the other appellants to assault and kill him. The appellants were armed with lathi, iron rods and farsa. As soon as appellant Chandrama Singh remonstrated the appellants to assault, appellant Vijay Singh alias Vijay Kumar Singh dealt a blow with farsa on the back of head of P.W. 3. He repeated the blow with the same weapon on P.W. 3 and that hit him on his left hand. P.W. 3 stated that he fell down whereafter other accused persons also assaulted him and he became unconscious. When he regained his consciousness he found that his parents and others had brought him for treatment to Patna Medical College Hospital where he was admitted for being treated. 3. As regards the delay in lodging the report, the informant stated in his fardbeyan that as he was not in a position to make statement on account of being unconscious, he could not lodge it and as soon as he regained consciousness he lodged the case. 4. On the basis of the fardbeyan( Ext. .3) of P.W. 3 F.I.R. of the case was drawn up and the investigation was undertaken by C.W.1 Shri Shiv 3 Narain Ram himself who stated that after having drawn up the F.I.R. of the case, while he as posted as Officer-in-charge of Mohammadpur Police Station, he took up the investigation himself and came to the place of occurrence to inspect it which field was found bounded by the fields of different persons as stated by C.W.1. He did not find any material evidence during the course of investigation at the place of occurrence. After completing the investigation and finding material sufficient he sent the appellants up for trial which, ultimately, ended in the impugned judgment. 5. As regards the defence of the appellants, it appears from their statements recorded under Sections 313 of the Code of Criminal procedure that they pleaded being implicated on account of land dispute. That defence also appears suggested to different witnesses who were examined for proving the charges that the parties being pattidars were at daggers drawn for a particular land dispute. 6. In support of the charges the prosecution examined six witnesses. P.W. 1 Rupesh Kumar Singh and P.W. 2 Champa Devi were the brother and mother of P.W. 3, the informant of the case, namely, Sanjiv Kumar Sigh. P.W. 4 and 5, namely, Daroga Singh and Surendra Sigh also supported the story of assault on the informant by the appellants but without specifying clearly as to who had dealt blows with which weapon. P.W. 6 was a witness of formal character having brought on record the F.I.R.( Ext.1) of the case due to being acquainted with the writings of the Officer-in-charge of Mohammadpur Police Station. 7. Arguing the appeals, it was contended by Shri Rana Pratap Singh, learned Senior counsel for the appellants that the manner of occurrence 4 which was narrated by P.W.3 in the F.I.R. was specifying only appellants, namely, Vijay Kumar Singh and Chandrama Singh to have committed an overt act. As regards the basic prosecution case in the F.I.R., it did not contain any allegation of participation by dealing blows so far as appellants Chandan Singh and Ajay Kumar Singh are concerned, but P.Ws. 1 and 2 while deposing in court were making specific allegation against these two appellants and were alleging that they had also assaulted the injured P.W. 3 with iron rod or lathi. The contention further was that the date of occurrence was 9.4. 2001 at 6 P.M. and the F.I.R. was lodged on 11.4.2001 at 6 P.M., i.e. after forty eight hours of the occurrence in P.M.C.H. The explanation which was given in the fardbeyan was that on account of not being in position to make statement due to being unconscious, P.W. 3 was making a delayed statement to the police. However, when the court considers the evidence of P.W. 3 in paragraph 8 it could find that the informant was quite conscious as he was hiring a vehicle and was travelling in it to consult Doctor Baidyanath Singh and by getting himself referred to P.M.CH he came to P.M.C.H. where he was admitted for treatment. It was contended that the explanation on the delayed lodging of the case was bogus. The story of hiring vehicle and going to a Doctor at a particular place or to PMCH also appeared a well- thought out story and that is established by non-examination either of Dr. Baidyanath Singh or Doctor of PMCH or production of any of the documents of the Doctors who could have examined or treated the informant in PMCH. In fact, the genesis or real reason for the occurrence was that there was a dispute for a particular piece of land between the parties and in order to putting criminal pressure, the informant had weaved 5 out a concocted story to implicate the appellants. Thus, on account of the above reason, the prosecution was shy of not producing either Dr. Baidynath Singh or any Doctor who could have examined the informant in PMCH. Further, it did not even attempt to produce the document, like injury certificate or report granted by any of the Doctors. It was contended that under the circumstances, which appear from the evidence of the witnesses, the judgment of conviction and order of sentence passed against the appellants are quite unsustainable in law. 8. Shri Ajay Mishra, learned Additional Public Prosecutor appearing on behalf of the State has submitted that the oral evidence of the witnesses indicates as if appellant Vijay Kumar Singh gave farsa blows repeatedly on P.W. 3 and that could give sufficient reason to this Court to hold that blows with farsa were dealt with an intention to kill and, as such, the offences for which the appellants were convicted appear to be duly constituted and they were properly convicted. 9. The genesis of the occurrence was the cutting of ridge by the informant. The ridge appears common. It has not been said either by any of the witnesses. But, from the prosecution case and admission of the informant by making the statement in his fardbeyan that he had not cut the ridge of the accused, rather had dressed his own ridge up, that inference is raised.. Even assuming that it was the ridge of the appellants which had been cut and on that account they had armed themselves with lathi, iron rod and farsa and come to the house of the informant, firstly, to lodge a protest and thereafter to assault him and they indeed assaulted him, appears doubtful on account of one fact that CW1 while deposing on the description of the place of occurrence was not pointing out to the trial 6 court that he found any ridge being cut or damaged or destroyed or even dressed up as claimed by the informant. Thus, what this Court finds is that the very genesis of the occurrence that on account of cutting of the ridge the appellants could have gone to the house of the informant being armed themselves to assault him could not be said to be true. This is one aspect of the case. 10. The other aspect which was highlighted by Shri Singh, the learned Senior counsel for the appellants, was that witnesses were making improvement as regards the basic prosecution story of assault also on P.W. 3. One may argue that the fardbeyan is not the substantive piece of evidence, but it is a long recognized principle of law that it may not be an evidence, but remains one of the most potent weapon in the hands of the defence for castigating the prosecution story by submitting to the court that the prosecution during the course of trial, while leading evidence had deviated from its basic story and, thereby, had made improvement on some part or most of the parts of its initial story. It is well known that fardbeyan should not be categorized as the evidence. But, the evidence has to be tested on the balance of truthfulness as regards the evidence of witnesses, by looking to the initial story which is contained in the F.I.R. The F.I.R of the present case specifies only two appellants to have dealt blows. Appellant Vijay Kumar Singh dealt two repeated farsa blows on the head and left hand of P.W. 3 whereafter there is absence of any story of assault against any other appellant except appellant Chandan Singh who is said to have given iron rod blow to the informant. Whether evidence is truthful on above fact, I am going to record some finding a bit later when I come to consider the evidence of the witnesses, like, P.Ws. 1 and 2 who 7 are full brother and mother of P.W.3. It is clear that those two witnesses were adding up further story of assault by alleging that Ajay Kumar Singh and Chandan Singh had also assaulted the informant which is not the basic story contained in the fardbeyan. P.Ws. 4 and 5 who are witnesses who did not name the two appellants, namely, Vijay Kumar Singh and Chandrama Singh and did testify without specifying any allegation against any one that any blow by any weapon or by any means was dealt upon the informant P.W. 3. They have been treated as the competent eye witnesses by the trial court in spite of the fact that they have given general and non-specific evidence as regards the manner of assault and the author who had dealt blows on informant P.W. 3 or any other persons. When this improvement by P.Ws. 1 and 2 is scanned, it may be noted that they added up to the story of assault for no reason, rather, they had a motive to do it. It is too well known to be pointed out that near relatives who are witnesses are always motivated by a psychology that they should make such statements which could make them competent witnesses and thereby satisfy the conscience of the court to record the finding of guilt. On this score, the evidence of related witnesses has been rejected and that circumstance appears available to me also. 11. Coming to the manner of assault as alleged by the prosecution, even accepting to be true, only two appellants namely, Vijay Kumar Singh and Chandrama Singh appear to have assaulted the informant. It could get corroboration only from P.Ws. 1 and 2. But, the other corroboration which was necessary as regards the manner of assault, i.e., use of weapons causing the injuries is completely lacking. 12. P.W. 3 the informant has stated in paragraph 8 of his evidence that 8 he hired a jeep, sat in it to come to Dr. Baidyanath Singh where he was treated for one day and thereafter he was referred to P.M.C.H. for his treatment. This statement could never be acceptable to any reasonable person if he had gone through the contents of the F.I.R. where a story of getting unconscious on account of being dealt blows by Vijay Kumar Singh and Chandrama Singh is extended up to such a stage as till making the statement in P.M.C.H. The fardbeyan does not leave any room so as to inferring that the informant could have regained consciousness at any moment of time before he was making his statement to give his fardbeyan. But, his evidence in paragraph 8 is quite contrary to that story of getting unconscious after being assaulted by Vijay Kumar Singh and Chandrama Singh. One may stop to ponder as to how he travelled to such an extent to hire the vehicle to go to the Doctor and made the statement in such a state of unconsciousness as stated by him in his report. It was as clear as the day light. For, he was not unconscious and further that the manner of occurrence might have been different from what he alleged that he was putting down a false story as regards his falling unconscious. I could assume that he was quite conscious and, as such, he hired a jeep and was travelling in it. But this question as to why Dr. Baidyanath Singh who examined the informant or any of the Doctors of P.M.C.H. who could have examined him was not turning up to depose to have found any injury goes unanswered. Not only that, this Court could have appreciated the same had the prosecution made any effort to produce any documentary evidence or had produced any Doctor who had examined the informant or who recorded any injury on his person. If that could not be produced then, could not it be presumed that there was no injury on the person of the 9 informant and that no injury report or certificates was issued by the Doctors who attended on him, and probably because the informant, P.W. 3 was not examined by any Doctor, as such, no Doctor was appearing before the court nor any injury report was produced by the prosecution. 13. If this could be the inference which I have just drawn on account of non-production of the Doctors or any document in that behalf which could have been issued by them then, this Court could be more reluctant to sustain the submission of Shri Mishra that oral evidence could be sufficient to raise an inference that the accused persons intended to cause such injury as could have caused death or as could be likely to cause death or could be known as dangerous to life. On this reason, this Court could not sustain the conviction of the appellants under Section 307/34 of the Indian Penal Code or Section 307 simpliciter. 14. In fact, while being taken through the evidence of the witnesses and specially P.W. 3 in paragraph 8 the Court had a conscious belief as if the informant was pondering over as to how to present the facts so as to presenting them, firstly, before the investigating agency and thereafter before the court so as to obtaining conviction against the appellants. This I observe after I had considered the untenable explanation which was furnished by P.W. 3 in his fardbeyan on the delayed statements he was making to the police two days after the occurrence. His story of falling unconscious and regaining his consciousness only after being brought to the P.M.C.H. where he was accompanied by his parents could be very difficult for me to be purchased in the light of his evidence in paragraph 8 where he was stating that after being assaulted he was hiring a jeep and was sitting in it to travel to Dr. Baidyanath Singh for being treated. That 10 evidence of the informant completely falsifies his explanation and this was the reason that I noted that he was pondering over in a state of indecisive mind as to how should he weave out a case for implicating his old opponents in a dispute for a particular land. 15. If there is a tendency in the witnesses to fabricate facts or to improve the facts for inserting further allegations, which could not stand the scrutiny of the court, then in such cases there could be any order of conviction of any accused. The present appears a case of that class, considering which the conviction of the appellants and sentences passed upon them could not be sustained. 16. In the result, I allow these appeals by setting aside the judgment of conviction and order of sentence passed upon the appellants to acquit all the appellants of both the appeals of the charges. 17. The appellants are on bail. They shall stand discharged from the liabilities of their bonds. ( Dharnidhar Jha, J.) Patna High Court The 2nd August, 2011 Kant/N.A.F.R.