CRIMINAL APPEAL No.110 OF 1988. ------- Against the judgment of conviction and order of sentence dated 25.01.1988 passed by the 7th Additional Sessions Judge, Siwan, in Sessions Trial No. 193 of 1978. ------- Tahur Mian, Son of Sher Mohammad, resident of village- Hussainganj, P.S.(Ander) Hussainganj, District- Siwan………………………………………………………………………………………………………….Appellant. Versus The State of Bihar…………………………………………………………………..Respondent. ------- For the Appellant: M/S. N.A. Shamsi & Arjun Prasad No.2, Advocates. For the Respondent :Mrs. Shashibala Verma, A.P.P. ------- P R E S E N T THE HON’BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON’BLE MR. JUSTICE DINESH KUMAR SINGH. S.K.Sharma & D.K.Singh,JJ. The appellant has challenged his conviction under Section 302 of the Indian Penal Code wherein he has been sentenced to undergo rigorous imprisonment for life vide Sessions Trial No. 193 of 1978 passed by the learned 7th Additional Sessions Judge, Siwan, on 25.01.1988. 2. The prosecution case as per the fardbeyan (Ext.1) of Hussaina Ali (P.W.6) recorded by Jamadar at Sadar Hospital, Siwan, on 11.11.1977 at 8.10 P.M. is to the effect that at 5.30 P.M., when the informant was 2 returning to his house from Siwan he came to know that his brother Mumtaz @ Gulteni has been stabbed by knife by Zahur. His brother was taken to Hussainganj Government Hospital and then the informant reached Hussainganj Hospital where he found his brother Mumtaz in unconscious condition with profused bleeding injury. In the hospital, the informant found his co-villager Hasim Mian (P.W.2), who conveyed to the informant that the informant’s brother has been stabbed by Zahur after an altercation took place between Zahur and the deceased over an amount of Rs. 5/- which was taken by Zahur on credit from the deceased Mumtaz. But when the deceased demanded back Rs. 5/-, then Zahur started abusing and in the scuffle Zahur gave knife blow on the back of the shoulder of Mumtaz. The informant also came to know that Zahur also received stab injury but he can not say who caused injury to Zahur. When the condition of the informant’s brother deteriorated, the doctor at the Hussainganj Hospital advised to take the victim to Siwan Hospital. Then the victim Mumtaz was brought to Siwan Hospital on the Jeep of the Hussainganj B.D.O. It is also stated by the informant that Zahur also 3 boarded the same Jeep, in an injured condition. When the Jeep reached near the Ander Railway Crossing, the informant’s brother died and ultimately at Siwan Hospital, the doctor declared Mumtaz Ali dead and then the treatment of Zahur started. It is further stated by the informant that in Siwan Hospital, Zahur was also in a disturbed condition. It is submitted by the informant that his brother Mumtaz Ali was in unconscious state from the very beginning and did not say anything and claimed that the villagers shall give the details about the occurrence. 3. On the basis of the aforesaid fardbeyan(Ext.1),Hussainganj P.S. Case No. 05 of 1977 was registered under Section 302 of the Indian Penal Code. 4. It appears that initially the F.I.R. was lodged against Zahur but after investigation, Zahur was not sent-up for trial and the present appellant was charge sheeted under Section 302 of the Indian Penal Code. Consequently, the charge was framed against the present appellant under Section 302 of the Indian Penal Code. (The major portion of the paper book and the lower court record is not legible hence the present judgment is disposed 4 of on the basis of the certain evidences and other documents being supplied by the learned counsel for the appellants.)Let it be kept on the record. 5. The prosecution in order to prove the charges has examined nine witnesses of which P.W.1 is Ram Pukar Singh, who is formal witness and has proved the fardbeyan(Ext.1). P.W.2, Md. Hasim, is the Rickshaw Puller who took the victim from the place of occurrence to Hussainganj Hospital and it is P.W. 2, through whom the informant came to know about the occurrence but P.W.2 has not supported the version given by the informant in the fardbeyan, hence he has been declared hostile. P.W.3 is Abdul Gafar Mian who put the injured Mumtaz @ Gulteni on Rickshaw and admittedly he is not the eye witness to the occurrence. In paragraph no. 2 this witness has stated that his statement was not recorded before the police. P.W.4, Kanta Mian @ Nabi Ahmad, claims to be an eye witness. P.W.5, Md. Quasim, also claims to have seen the occurrence. P.W.6, Hussaina Ali, is the informant 5 who initially alleged that Zahur assaulted the victim but subsequently he developed his statement to the effect that the appellant assaulted the victim. P.W. 7 is the doctor, who conducted the post mortem of the deceased Mumtaz. P.W.8 is Gulzar Sheikh, who happens to be a chance witness. P.W.9 is Tarkeshwar Prasad, the Investigating Officer of the case. 6. The defence has also examined one witness Hussain Ali to prove that actually Hussaina, the brother of the deceased, wanted to assault Zahur but accidentally the injury was caused to the deceased, Mumtaz. The defence has filed Ext. A, which is the fardbeyan of Zahur in Ander P.S. Case No. 05 of 1977 recorded on 11.11.1977 which reflects that actually Mumtaz @ Gulteni (deceased)demanded 15 rupees from Zahur and when it was not given by Zahur then Mumtaz Ali started assaulting Zahur and thereafter Mumtaz assaulted Zahur with dagger, causing injury on the left hand and chest. On hearing the alarm, Mahmood Mian, Hussaina Ali and others came and then Hussaina Ali tried to make assault by Gupti to Zahur but caused injury to the 6 deceased Mumtaz on his back. Thereafter Zahur was taken to hospital by Hussaina Ali and Mahmood Mian. Though the police finding the accusation false submitted final form (Ext.B) which was accepted by the learned Judicial Magistrate vide Ext.C. 7. On the basis of such evidence, the learned trial court convicted the appellant under Section 302 of the Indian Penal Code rejecting the plea of the defence that the informant has changed his version from the fardbeyan and also by ignoring the fact that other injured Zahur came out with a different manner of the occurrence. 8. Now this Court has to examine whether the informant has come out with the true version of the prosecution case and whether the evidence on record proves the prosecution case beyond shadow of reasonable doubt against the present appellant. P.W.1 has proved the fardbeyan (Ext.1) but he has failed to prove the contents of the fardbeyan since he is an Advocate Clerk. P.W.2 is Md. Hasim, through whom the informant came to know about the occurrence which is the basis of the fardbeyan of P.W.6 but in paragraph no.1 of his deposition, this 7 witness has stated that when he came to Hussainganj Chatti, he came to know that Gulteni gave knife blow to Zahur, while Tahur gave knife blow to Gulteni but it was not known why Tahur assaulted Gulteni. In paragraph no.2 of his evidence, this witness has deposed that he has not stated before the police about the genesis of the occurrence, but he has stated that Tahur gave knife blow on the right shoulder of the deceased which contradicts the fardbeyan of P.W. 6, which was based upon the information supplied by P.W. 2, whereas the specific case of P.W. 6 was that P.W. 2 informed P.W. 6 that Zahur gave knife blow on the right shoulder of the deceased. Though this witness, i.e., P.W. 2 has been declared hostile but the inconsistencies in the evidence of P.W. 2 not only impeaches the credibility of the evidence of P.W. 2 but also clouds the fardbeyan of P.W. 6, who did not at all name the appellant in the fardbeyan but subsequently named the appellant in his deposition. P.W.3, admittedly, has not seen the occurrence and he only deposed to the extent that the deceased and Zahur were brought to the hospital. In paragraph no.2 of his 8 evidence he has stated that his statement was not recorded before the police. Hence his evidence is of no help to the prosecution. P.W.4 in para 1 has stated that he saw Gulteni giving Knife (Chura) blow to Zahur, who was subsequently taken to hospital by P.W. 3 on Rickshaw. In paragraph no. 2 of his deposition, P.W.4 has stated that subsequently this appellant, Tahur, came and gave a knife blow on the right shoulder of the deceased, when this witness conveyed the entire occurrence to P.W. 6, but his narration of the occurrence does not find place in the fardbeyan of P.W. 6. Surprisingly, P.W. 4 ought to have been the informant or at least witness to the fardbeyan. Hence, this inconsistency clouds the credibility of this witness. P.W.5, happens to be a chance witness who first saw the bleeding injury to Zahur while he was going on rickshaw of P.w.3 and thereafter he saw Tahur assaulting, with Chhura, on the back of Mumtaz @ Gulteni. The evidence of this witness gets contradicted with the version of the informant in the fardbeyan and in his evidence and the fardbeyan of Zahur (Ext.A), which clearly 9 reflects that both Zahur and the deceased Gulteni received the injuries in the same transaction. P.W.6 is the informant, who in paragraph no.1 has stated that initially he came to know that Zahur assaulted his brother with regard to payment of Rs. 5/- which was taken as loan by Zahur from the informant’s brother in which Zahur also received injuries. This evidence of P.W.6 appears to be a developed version, as in the fardbeyan, this witness has stated that he received the information about the occurrence from P.W.2 but during trial he has not named P.W.2 as a source of information. In paragraph no.2, P.W.6 has changed his version by saying that subsequently Md. Quasim(P.W.5), Abdul Gaffar Mian, (P.W.3), Kanta Mian @ Nabi Ahmad(P.W.4) conveyed to the informant that it was not Zahur who assaulted, but it was Tahur who made the assault. 9. From evidence of P.W.6 this much is apparent that he is not an eye witness and it appears that he retracted from the version in the fardbeyan because P.W.2 gave a different version of the occurrence and stated that he never made any statement before the police nor 10 admitted that he conveyed anything about the occurrence to the informant. 10. It is true that the First Information Report is not a substantive piece of evidence but it has to be used for corroborative and contradictory purposes under Sections 145 and 157 of the Evidence Act. Hence on this score, when the informant’s specific case in the fardbeyan was that Zahur made the assault and this fact having been admitted by P.W.6 (the informant) in paragraph no.1 of his evidence, the credibility of this witness cannot be treated above board, more so in the light of paragraph no.2 of his evidence where he admits that on the subsequent information supplied by P. Ws. 3,4 and 5, he changed his version. 11. From the fardbeyan and the evidence of this witness, it appears that the prosecution case which was investigated by the police has not been tried to be proved by the informant during the trial and it appears that when the investigating agency found the accusation against Zahur as false, then a different stand was taken by the informant. 12. The story canvassed in the fardbeyan appears to be more trustworthy in view of the fardbeyan of Zahur (Ext. A), which clearly 11 suggests that initially fight ensued for a paltry amount of money between the deceased and Zahur and it was the deceased’s brother, Hussaina Ali (P.W.6), who tried to give Gupti blow to Zahur which accidentally caused injury to the deceased. This version gets support from the fardbeyan and the evidence of P. Ws., including P.W.6 that Zahur and the deceased were taken to Sadar Hospital on the same Jeep. The informant happens to be the pilot of the prosecution case and if the informant himself claims to have come to know about the occurrence from P.W. 2 and changes his version during evidence with regard to manner of assault, then it appears that the informant has measurably failed to prove his case. P.W.7 is the doctor who held the post mortem on the body of the deceased and found one incised wound of ½” X 1” X chest cavity on the right shoulder, which is Ext.3, but evidence of P.W. 6 is not consistent with the fardbeyan as to who caused this injury to the deceased. Though the doctor has deposed that the cause of death was the alleged injury. P.W.8, happens to be a chance witness and the own brother of the deceased, who claims to have seen Tahur assaulting on the 12 right shoulder of the deceased with dagger, but he did not take any effort either to take the victim to hospital or to inform the police. In paragraph no.3 of his evidence he has stated that after having seen the assault, he went to his house, which creates doubt about the credibility of his evidence. In paragraph no.2 of his deposition, this witness has stated that subsequently he came to know that the deceased also assaulted Zahur, which proves that this witness has not seen the actual occurrence. The credibility of P.W. 8 as an eye-witness is not trustworthy in view of inconsistency in his own evidence. Taking into consideration his evidence in paragraph no.3, where he came to depose to the extent that he informed about the occurrence to the informant, it can be said that if he would have informed about the occurrence to the informant, then there could have been no occasion for the informant to retract and depose a different version to the effect that Zahur assaulted the deceased. P.W.9, Tarkeshwar Prasad, is the Investigating Officer who has come to depose that the initial scuffle ensued between the deceased and Zahur in Hussainganj Market, 13 where he found the blood. He also found blood at the second place of occurrence. In paragraph no.5 this witness has stated that P.W.2 conveyed that the fight between Gulteni and Zahur took place for the gambling money, in which Gulteni assaulted with dagger upon Zahur and thereafter he ran away and then Tahur assaulted the deceased, but since, P.W.2 has been declared hostile, this evidence has no relevance. In paragraph no.8, P.W. 9 has stated that P.W.4 made no statement, with regard to the occurrence, before the police. In paragraph no.9, this witness has shown his ignorance about the case lodged by Zahur. Hence, from the evidence of P.W.9, it appears that Zahur also received injuries and the initial assault was between the deceased and Zahur. Hence, the prosecution has failed to explain the injury to Zahur which creates doubt about the prosecution case. D.W. 1, Hussain Ali, has stated to the effect that initial assault was made by Gulteni to Zahur and thereafter P.W. 6, Hussaina Ali, the brother of Gulteni, tried to assault Zahur which accidentally caused injury to the deceased Gulteni. Hence, this D. W. also supports the case that it was not Tahur 14 who assaulted the deceased but it was only an accidental injury being caused to the deceased by Hussain Ali. 13. Learned counsel for the state Mrs. Shashibala Verma and the informant Vinay Kirti Singh have submitted that the evidence of P. Ws. 4,5,7 and 8 proves the case beyond the shadow of reasonable doubt but to our view their evidence is not only inter-se contradictory but they are also contradictory to the evidence of other witnesses and their evidence, in no way helps the prosecution to prove the case beyond the shadow of reasonable doubt. 14. It is contended on behalf of the appellant that the appellant was a minor on the date of occurrence, as on the date of judgment on 25.01.1988, the age of the appellant was assessed to be 27 years, whereas the date of occurrence was 11.11.1977. But we are not deliberating on this issue since the prosecution has failed to prove the charges beyond the shadow of reasonable doubt. 15. After scanning the evidence, it appears that since the informant has changed his version during trial before the court than what was said in the fardbeyan and taking into 15 consideration the contradictory stand of the prosecution witnesses, the prosecution has failed to prove the case beyond shadow of reasonable doubt. In such circumstances, it is difficult to uphold the order of conviction on the basis of the evidences available on the record. 16. In view of the aforesaid discussions, the judgment of conviction and order of sentence dated 25.01.1988 are set aside. Since the appellant is on bail he is directed to be discharged from liability of the bail bonds. 17. Accordingly, the appeal is allowed. Patna High Court Dated 1st September,2010. U.K./N.A.F.R. (Shyam Kishore Sharma,J) (Dinesh Kumar Singh,J)