GOVT. APPEAL (SJ) No.34 OF 1990 (Against the judgment of acquittal dated 6.3.1990 passed in Sessions Trial No.12 of 1983 by Sri P.N. Shukla, Ist Additional Sessions Judge, Katihar.) ………… THE STATE OF BIHAR--------------------------------------------------------APPELLANT. Versus 1. SK.JALAL . 2. MD. ALLAUDIIN. BOTH SONS OF HAFIZUDDIN. RESIDENT OF VILLATE:HARIHARPUR, P.S. AZAMNAGAR, DISTRICT- KATIHAR. ………………………………………………………………………RESPONDENTS. ------------ For the State : Mr. Jharkhandi Upadhyay, A.P.P. For the Respondents : M/s. Najmul Hoda and Md. Kamrul Hoda, Advocates. ----------- P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha,J: This appeal has been preferred by the State of Bihar under Section 378(1) and (3) of the Code of Criminal Procedure against the judgment of acquittal dated 6.3.1990 passed by Sri P.N. Shukla, the then Ist Additional Sessions Judge, Katihar in Sessions Trial No.12 of 1983 arising out of Jhaua P.S. Case No.154 of 1982, whereby he has acquitted the accused Sk. Jalal, charged with the offence under Section 307 I.P.C. and accused Md. Allauddin, charged for the offence under Sections 307/34 I.P.C. 2. It appears that on 28.7.1982 the Officer Incharge of Barsoi G.R. P.S. of Barsoi Railway Station received a message from - 2 - the Station Master of Jhaua Railway Station to the effect that Mistri Sudarshan and Raj Kumar, gangman, had reported at 7.45 P.M. that the father of Raj Kumar has been badly beaten and his head had been broken by Jalal and Alauddin, gangmen, and that his condition was very serious. On receipt of the said message the Officer Incharge of Barsoi G.R.P.S. forwarded the same to the Officer Incharge of Kadwa P.S. on the same day and on 29.7.1982 the Officer Incharge of Kadwa P.S. registered this case. It further appears from the impugned judgment that since there was no other written statement of the occurrence on the basis whereof the facts of the case could be culled out, the deposition of P.W.10, injured Saligram Paswan in his examination in chief was deemed to be the base for framing the facts of the case. According to the said facts the injured as also the accused are all gang men and they had their quarters very close to each other where both the accused lived together. It appears that the injured on the date of occurrence on his return from his duty at about 7 P.M. was informed by his wife Chano Devi and daughter Tetri Devi that since their cow and calf had grazed on to the fields and damaged the paddy seedlings of the accused, the cattle were impounded whereupon on return of the two accused to their quarters P.W.10 wanted to know from them as to why they had impounded his cattle. He further told them that this could have been solved by a panchayati. It is said that this Alauddin caught hold of his hands and Jalal came out with an axe in his hand seeing which P.W.10 raised alarm which attracted the attention of neighbours who began to arrive at the spot. It is further - 3 - alleged that in the mean time Jalal inflicted a blow with the axe on the back portion of the head of P.W.10 causing him bleeding injury in the head and he fell down injured. It is also said that his daughter and wife came out as did the witnesses. P.W.10 claims to have become unconscious and on gaining consciousness he found himself in the Katihar Hospital where his dying declaration was recorded after 4 days of the occurrence by a Magistrate (P.W.15). 3. The defence of the accused, while admitting the fact that their cattle had grazed on to the fields of the injured and they had impounded them, was that it were the accused persons who had been assaulted by the prosecution side and the accused persons sustained injuries (vide Exts.A and A/1) and for which they had already filed a complaint (Ext.B) on the basis whereof a formal F.I.R. (Ext.C) was drawn up and the instant false case had been lodged by the present informant under the influence of P.W.9, Surendra Yadav, the head gangman. 4. Assailing the impugned judgment , it was sought to be submitted by the learned A.P.P. for the State that notwithstanding the availability of huge evidence warranting conviction for the accused, they had on irrelevant consideration and without proper consideration of the evidence had erroneously been acquitted. Relying on the medical report , it was sought to be submitted that the nature of offence as also the injury were sufficient to prove that the accused persons had committed the offence as alleged resulting in grievous injury of P.W.10 and the learned trial court had misdirected itself in - 4 - holding otherwise. 5. It was also submitted that the prosecution in support of its case had examined as many as 15 witnesses who had categorically in various ways supported the prosecution case but the learned trial court on irrelevant considerations did not seem to rely on their evidence notwithstanding the fact that minor contradictions here and there does not render the prosecution story untrustworthy. Grievance has also been raised against the trial court being misled by the complaint case filed by the accused since the same was concocted. 6. I have perused the impugned judgment as also the evidence adduced by the prosecution both oral and documentary. It appears that the learned Trial Judge was conscious of the fact that there was no written statement or any proper complaint on which the F.I.R. could have been based and the un-exhibited documents herein, endorsement in the form of Ext.4 and 4A could not be said to be a written report for commission of a cognizable offence. It rightly held that under Section 153 Cr.P.C. there is a provision of oral information also and this oral information of commission of offence by Sudarshan Yadav to the Assistant Station Master Jhaua (P.W.10) who communicated it telephonically to the Officer Incharge, Barsoi, ought to have been signed as provided under this Section. The court was also conscious of the fact that under the Cr.P.C. there is no provision for telephonic message but the said message could be treated as a oral report and the same should have been reported by the person who had reduced it to writing after making a sanaha entry. Curiously, the wife - 5 - and daughter of the injured who were present at the occurrence could have given the First Information Report which they did not. P.W.10, the injured who was the most competent and reliable witnesses on the point of occurrence has tried to support the prosecution case in material particulars but out of his wife Chano Devi and daughter, Tetri as also Ramesh, the husband of Tetri, who lived in the quarter alongwith the injured and were present, for the reasons best known to the prosecution were not examined and only Tetri who had been examined was tendered. The court also appeared to be conscious of the fact that the unofficial witnesses had made efforts to improve over the earliest version of the case as disclosed by them to the police and this by itself cannot espouse the cause of the prosecution. 7. The evidence of the Doctor, P.W.13 who examined the injured at Kadwa hospital is very relevant. He found as many as four injuries, the first of which was an injury on the head, the situs and size whereof had not been disclosed. The second injury was a lacerated wound over right occipital region 3”x 1/2” in length which was found stitched, third injury was defused and depressed compound fracture of right occipital bone and the fourth was bleeding from right ear. In the opinion of the doctor the first injury was grievous in nature but at the same time in his deposition he admitted that injury nos.2, 3 and 4 were part and parcel of injury no.1. This part of the evidence of the doctor was rightly disbelieved by the court since head injury was very much different from lacerated stitched wound and fracture would definitely be a distinct and independent injury. The doctor had opined - 6 - that the injuries were fresh in natrure. Ext.3, the injury report shows that the injured Saligram Paswan was admitted in the railway hospital on 28.7.1982 at 11.30 P.M. and the signature of the doctor on the said injury report is dated 13.8.1982 which shows that the injuries sustained by P.W.10 was in fact, attended to by the doctor on 13.8.1982. 8. The reasons assigned by the learned Trial Judge for recording an order of acquittal is available in paragraph-18 of the impugned judgment which reads as follows: “From the above discussion of mine, it is clear that since the basis of F.I.R. is not signed, since the original Fard Beyan recorded by O.C. Barsoi, basis of Ext.2 has not been brought on record. Since O.C. Barsoi G.R.P. who had examined the witnesses first and recorded their statements and the doctor Barsoi, who had attended the injured had not been examined. Since Ramesh son in law of the injured, Chano wife of the injured who were present there and were more natural witnesses have not been examined Kauhalya has been founded only one natural witness P.W.7 Tetri has been tendered. Since witnesses examined in this case from P.W.1 to P.W.10 were and are Gangmen or nephew of P.W.9 Sudarshan, they all worked under him and Sudarshan has some grudge against the accused, they are not the independent witnesses and they also contradict each other. Since the doctor who had stitched the wound of the injured had not been examined and the statement of doctor P.W.13 is hopelessly confused. He had granted the injury report on 13.8.1992 for an occurrence of - 7 - 28.7.82 claiming that the injuries were fresh and even on recall the doctor could not explain it in absence of any paper, the one and only conclusion that can be drawn is that the prosecution has failed to prove the guilt against the accused persons.” 9. I find no apparent reasons for differing from the view taken by the learned Trial Judge. Accordingly, the appeal preferred by the State Government being without merit is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 20th day of August, 2009. Pradeep Srivastava/A.F.R.