CRIMINAL APPEAL No. 240 (DB) OF 2007 With CRIMINAL APPEAL NO. 114 (DB) OF 2007 ----- Against the judgment of conviction dated 19.12.2006 and order of sentence dated 22.12.2006 passed by Sri Ganesh Prasad Singh, Additional Sessions Judge, Fast Track Court No.Second, Banka in Sessions Trial No.718 of 2002. ----- UDAY @ FUCHAN MISHRA SON OF LATE PANCHU MISHRA RESIDENT OF TARI MAJHAGAON,POLICE STATION BELHAR,DISTRICT BANKA ------ APPELLANT (in Cr.Appl.No. 240 of 2007) 1.BAMBAM MISHRA 2.TARAKANTH MISHRA BOTH SONS OF LATE DAMODAR MISHRA RESIDENTS OF VILLAGE TARIMJHIA, POLICE STATION BELHAR,DISTRICT BANKA 3.DILIP KUMAR MISHRA SON OF LATE RAJ KUMAR JHA 4.PREMA DEVI WIFE OF LATE RAJ KUMAR JHA RESIDENTS OF VILLAGE ROHANI,POLICE STATION JASIDIH,DISTRICT DEOGHAR(JHARKHAND) ----- APPELLANTS (in Cr.Appl.No. 114 of 2007) VERSUS THE STATE OF BIHAR --------- RESPONDENTS (in both the above appeals) ----- For the Appellants : M/s Rana Pratap Singh,Sr.Advocate Sumant Singh, Aruni Singh and Sandeep Kumar (in both the appeals) For the respondents: Mr.Ashwini Kumar Sinha, Addl.P.P. (in both the appeals) ------ P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA ------ S.K.Sharma & Akhilesh Chandra Both the above appeals have been heard together and are being disposed of by this common judgment because they have arisen out of one judgment. 2. Both the above appeals have been preferred by the above named appellants against the judgment of conviction dated 2 19.12.2006 and order of sentence dated 22.12.2006 passed by Additional Sessions Judge, Fast Track Court No.II, Banka in Sessions Trial No. 718 of 2002. The conviction of appellants Bambam Mishra, Tarakanth Mishra, Dilip Kumar Mishra and Prema Devi (Cr.Appeal No. 114 (DB) of 2007) was under Section 302 read with Section 34 of the Indian penal Code and they were sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo rigorous imprisonment for five months. The conviction of appellant Uday alias Fuchan Mishra (Cr.Appeal No. 240 (DB) of 2007) was under Section 302 of the Indian Penal Code and 27 of the Arms Act. He was sentenced for offence under Section 302 of the Indian Penal Code to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- and in default of payment of fine to further undergo rigorous imprisonment for five months. For offence under Section 27 of the Arms Act, he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.300/- 3 and in default of payment of fine, to undergo further rigorous imprisonment for one month. The sentences of appellant Uday alias Fuchan Mishra were ordered to run concurrently. 3. Fardbeyan of Nunu Lal Mishra son of Late Dip Nr.Mishra of village Tari Majhagaon, P.S.Belhar, District Banka was recorded by R.L.Mitra, S.I., Officer-in- charge Belhar Police Station, in the private clinic of Dr.Vijay Kr.Gupta on 11.02.2001 at 10.00 A.M. in which Nunu Lal Mishra, a man of 28 years and agriculturist, has alleged that at about preceding 8.00 A.M. he was cutting straw. At that very time, his brother Pramod Mishra was washing his hands on the handpump in front of his house. Informant’s Bhabhi Kausalya Devi, his wife Pappu Devi and his brother Amod Mishra were also there. Informant’s Bhabhi and his wife wanted to know as to who has evacuated near the tree. They would not be safe who have evacuated there. Reeta Devi, wife of appellant Uday alias Fuchan Mishra, Shuka Devi wife of late Damodar Mishra and Prema alias Huro Devi who were standing nearby the other houses 4 thought that they were attributing the aforesaid act to them. Thereafter, they started abusing the informant’s Bhabhi and others. The informant’s brother Pramod Mishra asked them not to do so, then they started pelting stones from their roof and after hearing the exchange of words, Uday alias Fuchan Mishra, Bambam Mishra, Tarakanth Mishra and Dilip Jha reached there and exhorted, whereupon Uday alias Fuchan Mishra went to his house and brought a country made pistol and in presence of Bambam Mishra, Tarakanth Mishra, Rita Devi, Sukka Devi, Prema alias Huro Devi and Dilip Jha, he fired upon Pramod Mishra which caused injury on his forehead. Informant’s brother fell down and became unconscious. He was carried to the clinic of Dr.Vijay Kr.Gupta for treatment who was posted in primary health Centre, Sangrampur. The informant’s brother died there. Meanwhile, the police came and fardbeyan was recorded which resulted in Belhar P.S.Case No. 14 of 2001 dated 11.2.2001 under Section 302/34 of the Indian Penal Code and 27 of the Arms Act. Sub- 5 Inspector of Police, R.L.Mitra took the charge of investigation. The allegation was investigated into and after completion of investigation, chargesheet was submitted against seven accused persons under Section 302/34 of the Indian Penal Code and 27 of the Arms Act. Cognizance was taken and the case was committed to the court of Sessions. Thereafter, charge under Section 302/34 of the Indian Penal Code was framed against all the seven accused namely, Uday Mishra @ Fuchan Mishra, Bambam Mishra, Tarak Nath Mishra alias Tarakant Mishra, Shuka Devi, Reeta Devi, Dilip Jha and Prema @ Huro Devi and further charges under Sections 302 of the Indian Penal Code and 27 of the Arms Act were framed against accused Uday Mishra alias Fuchan Mishra. Charges were explained to the accused persons who pleaded innocence. So the trial proceeded. During trial, two accused namely, Shuka Devi and Reeta Devi died and trial against them dropped. 4. The defence of the appellants was of false implication on account of enmity going on with regard to land belonging to 6 their co-sharers. 5. The prosecution in order to prove its case has examined Nunu Lal Mishra (informant of this case) as P.W.1, Kaushalya Devi as P.W.2 and Anmod Mishra as P.W.3. Amit Kumar is Court witness No.1, Kailash Prasad Singh is Court Witness no.2 and Ram Lakhan Mishra is Court witness no.3. 6. The defence has also examined Panchanand Jha as D.W.1, Shivan Yadav as D.W.2 and Digambar Mishra as D.W.3. 7. The prosecution has exhibited some documents. Formal F.I.R. prepared on the basis of fardbeyan (Ext.4) has been marked as Ext.3. Signature of witness on the fardbeyan has been marked as Ext.1. Ext.2 is post mortem report. The writing and signature of Dr.L.N.Mandal on the post mortem report has been marked as Ext.2/1. Ext. 4 is the fardbeyan of Nunu Lal Mishra. 8. The defence has also exhibited Kewala No. 7124 dated 22.4.1985 as Ext.A. 9. The trial court after taking into consideration the entire evidences on record found the appellants guilty and sentenced 7 them, as stated above. 10. This court has to see whether the prosecution was able to prove the charges against the appellants beyond the shadow of all reasonable doubts or not. 11. P.W.1 Nunu Lal Mishra (informant) has stated that on 11.2.2001 at about 8.00 A.M. while he was cutting straw and his brother Promod Mishra was cleaning his hands after evacuating himself, his Bhabhi Kaushalya Devi and his wife Pappu Devi were also there. The informant’s Bhabhi and his wife wanted to know as to who has evacuated near the tree which was objectionable to them. At that very time, Reeta Devi, Shuka Devi and Prema Devi alias Huro Devi started abusing. It was protested by informant’s brother Anmod Mishra which resulted in pelting of stones by the ladies namely, Prema Devi alias Huro Devi, Shuka Devi and Reeta Devi. Thereafter Uday alias Fuchan Mishra, Bambam Mishra, Tarakanth Mishra and Dilip Kumar Mishra went upon the roof of the house and exhorted to kill informant’s brother. All of them climbed down from the roof. Rajan 8 Pandit brought a country made pistol and handed it over to Uday alias Fuchan Mishra and again they went upon the roof. From the roof, Uday alias Fuchan Mishra fired causing injury on the forehead of Pramod Mishra who fell down and was carried to police station. The Officer-in-charge of the Police Station advised the informant to take the injured to hospital. The injured was brought to the private clinic of Dr.Vijay Kr.Gupta where he was treated but he succumbed to the injury. The informant was not satisfied with the investigation, so he filed a protest petition. The informant has described the genealogy, according to which, the informant, witnesses and the accused persons were of common family. According to him, land of Basuki Mishra was got registered in favour of Sajan Mishra, son of Kaushalya Devi because Basuki Mishra was issueless. As Sajan Mishra has performed the last rites of Basuki Mishra, so he owned the land of Basuki Mishra. 12. With regard to manner of occurrence, the evidence of other witnesses 9 i.e. P.Ws. 2 and 3 are also similar and all of them have stated that due to firing of Uday alias Fuchan Mishra, Pramod Mishra sustained injury and on being taken to hospital, he died there. Dr. Amit Kumar who has been examined as Court Witness No.1 has stated that on 11.2.2001 Dr.L.N.Mandal of Sadar Hospital had conducted the post mortem on the dead body of Pramod Mishra and found the following ante mortem injuries: External Injury (1) A stitched lacerated wound size ½” x ¼” x deep to brain on right eyebrow. On removal of stitch, blood clots were visible under the wound. Internal Injury On dissection of scalp blood clots were present under skin around right eyebrow. Skull bones fractured on right forehead. Brain tissues were lacerated and blood clots present in brain tissues. One bullet was recovered from cranial cavity. 10 Dr.L.N.Mandal has opined that cause of death is shock and haemorrhage due to bullet injury caused to brain by a fire arm. Time elapsed since death and P.M. held within 24 hours. 13. This witness has stated that the post mortem was performed by Dr.L.N.Mandal. According to this witness, he had occasion to work with Dr.Mandal for a short period but he was not acquainted with the writing and signature of Dr.L.N.Mandal. Post mortem report has been marked as Ext.2 with objection. The writing and signature on the post mortem report of Dr.L.N.Mandal has been proved by C.W.2 who was dresser in the hospital at the relevant time and was acquainted with the writing and signature of Dr.L.N.Mandal and has been marked as Ext.2/1. 14. The defence witnesses were examined on the accused persons to show that the implication was on account of a deed which was registered long back i.e. on 22.4.1985. It was executed by Basuki Mishra in favour of Damodar Mishra. 15. Learned counsel for the 11 appellants has submitted that no blood was found at the place of occurrence. The Investigating Officer has investigated the place of occurrence and non-finding of any drop of blood at the place of occurrence falsifies the prosecution version and as such no offence was committed at that place at the time of occurrence as alleged by the prosecution. It has further been argued that the post mortem report reveals that sole injury of the deceased was stitched. There is no even oral evidence to show that as to where the injured was treated. Further submission of the learned counsel of the appellants that there is no evidence at all that Dr.L.N.Mandal who conducted the post mortem was traceless or dead. Therefore, the trial court has erred in relying upon the post mortem report because primary evidence was available and it was not brought properly on record. The prosecution has withheld the doctor knowingly and it was done for the purpose of implicating the accused persons/appellants. The doctor who had brought the post mortem report on record has stated that he was not acquainted at all with 12 the writing and signature of Dr.L.N.Mandal who conducted the post mortem examination. So, according to learned counsel for the appellants, the post mortem report has not been brought on record. In absence of doctor, it is difficult to say that injury upon the deceased was caused by fire arm or not. 16. We have considered the submission and perused the record. We find that the doctor who conducted the post mortem report has not been examined. There is no report either with regard to his death or with regard to his absence. Even if the post mortem report is read, it is clear that the deceased was having one stitched injury. There is no evidence at all as to where the victim Pramod Mishra was treated prior to his post mortem examination. In this connection, not a chit of paper has been produced to show about treatment of Pramod Mishra. So, in our view, the post mortem report itself becomes doubtful. 17. Another circumstance which has been pointed out by learned counsel for the appellants appears to be correct is non- 13 finding of blood at the place of occurrence. Investigating Officer had gone to the place of occurrence but has not found anything there. 18. Another argument on behalf of the appellants is that the injured was taken to the clinic of Dr.Vijay Kumar Gupta at Sangrampur, District Munger at the advice of the Investigating Officer but when Investigating Officer was examined and this question was pointed out to him, then he declined that he had suggested that the injured should be taken to the clinic of Dr.Vijay Kumar Gupta. It has further been argued that the place of occurrence has not been established properly. The manner of occurrence has remained in doubt. Next submission is that the fardbeyan was recorded on 11.2.2001 whereas it was received in the court of Chief Judicial Magistrate on 14.2.2001 i.e. after three days and no explanation has been brought on record. In this connection, learned counsel for the appellants has placed reliance upon the decisions of the Apex Court in the case of State of Rajasthan.Vrs.Teja Singh and others 14 reported in A.I.R. 2001 S.C. 990 and in the case of Ishwar Singh.Vrs.The State of Uttar Pradesh reported in A.I.R. 1976 S.C.2423 and has argued that only on account of unexplained delay, the accused persons in that cases were acquitted. 19. In the present case, the fardbeyan was recorded on 11.2.2001 and it was received in the court of Chief Judicial Magistrate on 14.2.2001. The delay of three days has not been explained by the prosecution. It appears that there is substance in the argument of the learned counsel for the appellants that the fardbeyan was ante-dated. 20. After scrutinizing the entire evidences on record and after hearing learned counsel for the parties, we are of the view that the delayed perusal of the fardbeyan by the Chief Judicial Magistrate, non-finding of blood at the place of occurrence, non- explanation of the stitched injury upon the deceased, non-examination of the doctor who conducted the post mortem examination and other facts and circumstances of the case 15 clearly indicate that the prosecution has not been able to prove the charges beyond the shadow of all reasonable doubts. Once the doubt is created, the accused persons are to be benefited. Taking into consideration all the above, we are of the opinion that the appellants deserve to be acquitted. 21. In the result, both the appeals are allowed and the judgment of conviction and sentence are set aside. The appellants are acquitted of the charges. Appellants of Cr.Appeal No. 114 (DB) of 2007 namely, Bambam Mishra, Tarakanth Mishra, Dilip Kumar Mishra and Prema Devi, are discharged from the liabilities of their bail bonds. Appellant of Cr.Appeal No. 240 (DB) of 2007 namely, Uday alias Fuchan Mishra, who is reported to be in custody, is directed to be released forthwith if not required in any other case. ( Shyam Kishore Sharma, J. ) ( Akhilesh Chandra, J. ) Patna High Court, Patna The 16th March, 2010 Tahir/-(NAFR).