1 1 CRIMINAL APPEAL No.347 OF 2004 (DB) ----- Against the judgment of conviction and order of sentence dated 27.04.2004 passed by Sri S.N. Mahto, Ist Additional Sessions Judge, Naugachia in Sessions Trial No. 618 of 2001. ----- LAL MOHAMMAD @ LAL MD. SON OF SK.SATTAR RESIDENT OF VILLAGE JAMUNIA,P.S.PARBATTA (NAUGACHIA),DISTRICT BHAGALPUR --- APPELLANT VERSUS THE STATE OF BIHAR --- RESPONDENT ---- For the appellant : M/s Ram Chandra Singh and Satyendra Rai For the State : Mr.Ashwini Kumar Sinha,Addl.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD ---- S.K.Sharma & Gopal Prasad,JJ. The sole appellant was put on trial and by judgment dated 27.04.2004 he has been convicted under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life by Ist Additional Sessions Judge, Naugachia in Sessions Trial No. 618 of 2001. 2. The prosecution case has resulted on the basis of fardbeyan of Angoori Khatoon which was recorded at Subdivisional Hospital, Naugachia at 3.P.M. on 31.12.1999 in which she has alleged that on the same day at about 9.A.M. the appellant was telling for administering poison to the cow of informant’s husband and on protest by the informant’s husband this appellant assaulted 2 2 him with sword on his head twice. After sustaining injury, informant’s husband fell down and thereafter when he was being taken to Sadar Hospital, Naugachia for treatment, he succumbed to the injuries in the way. 3. Fardbeyan of the informant resulted in Naugachia (Parbatta) P.S.Case No. 282 of 1999 dated 31.12.1999 for offence under Section 302 of the Indian Penal Code. The matter was investigated into and after completion of investigation, chargesheet was submitted and the case was committed to the court of Sessions where charge was framed and explained to the accused who pleaded innocence. So the trial proceeded. 4. The prosecution in order to prove its case has examined altogether 7 witnesses. They are P.W.1 Md.Shamsher, P.W.2 Pappu Kumar Sharma, P.W.3 Md.Izhar, P.W.4 Md.Prawez Alam, P.W.5 Sheikh Sameer, P.W.6 Sheikh Ilyas and P.W.7 Angoori Khatoon, the informant of the case. 5. The defence of the accused was of false implication because he was claiming his share in house and other properties. 3 3 6. The trial court after considering the entire evidences and other materials on record came to the conclusion that the prosecution has been able to prove the charge beyond the shadow of all reasonable doubts against the accused. Hence he has been convicted and sentenced, as stated above. 7. We have to see whether the prosecution was able to prove the charge against the appellant beyond the shadow of all reasonable doubts or not. 8. The informant P.W.7 in her evidence has stated that at about 9.A.M. the appellant came and complained that his hen has been poisoned, so he would poison the cow of informant’s husband though the informant’s husband denied about poisoning. At that very time, accused Lal Maohammad retreated to his house and returned with sword in his hand and attacked twice on the head of informant’s husband who sustained injuries and fell down on the road. There was melee and cry. Thereafter the witnesses Md.Shasher (P.W.1),Md.Pravez Alam (P.W.4), Sk.Sameer (P.W.5), Sk.Ilyas (P.W.6), Moin (not 4 4 examined), Reyasat (not examined) and others came and witnessed the occurrence. Her husband was being carried to hospital for treatment but in the way he succumbed to the injuries. Thereafter the police came and her statement was recorded upon which she put her thumb impression. This witness has supported her version in her examination in chief. She was cross-examined on behalf of the defence. No major contradiction has appeared in her cross-examination. 9. P.W.1 has been declared hostile and P.W.2 has been tendered by the prosecution. Other witnesses, i.e. P.Ws.3, 4, 5 and 6 have supported the prosecution version. 10. In this case, the doctor and the Investigating Officer have not been examined and no explanation has been given regarding non-examination of the doctor and the Investigating Officer. The trial court has heavily relied upon the statements recorded by the Investigating Officer in course of investigation which was in the case diary and relying upon the statements of those 5 5 witnesses in the case diary, order of conviction was passed. The post mortem report and the fardbeyan have not been formally brought on record. So these documents cannot be perused. Relying upon the case diary is an extraneous consideration. The trial court has acted upon that. The case of the prosecution was that on account of attack by sword by this appellant, the death has occurred. It was the duty of the prosecution to prove beyond all reasonable doubt that the death was caused by the attack of the appellant and death was in the manner as alleged in the version of the informant and other witnesses. In absence of evidence of doctor, neither the manner of death nor other details have come. Not only this, it is difficult to presume whether death was caused or not. The inquest report has also not been brought on record. The Investigating Officer has not been examined. However, conviction has been passed only on the basis of case diary which was also not formally brought on record. The trial court relied upon the post mortem report which has been 6 6 mentioned in the case diary. These discussions are not in terms of the mandate as laid down in the Indian Evidence Act or under any procedure of law. Relying upon the contents of the case diary is not permitted and on this basis any order of conviction cannot be passed. The duty of the prosecution is to prove its case beyond the shadow of all reasonable doubts and for that only legal evidence has to be considered. The legal evidence in the case could have been examination of doctor and the Investigating officer which would have proved the cause of death. The contents in the post mortem report, inquest report, fardbayen etc. have been brought on record. The place of occurrence has not been established due to non-examination of the Investigating Officer. The defence has been prejudiced because it has failed to took contradictions in the statements of witnesses. 11. In this case, the proper course would have been to record the evidence of the Investigating Officer and other relevant witnesses and for that the appeal has to be 7 7 remitted. The appellant is in custody since 14.11.2000 and remanding the matter at this juncture would frustrate the cause of justice. 12. Considering all the facts and circumstances of the case, we are of the view that the prosecution has not been able to prove the charge against the appellant beyond the shadow of all reasonable doubts. So the appellant is entitled to get the benefit of doubt. Accordingly, he deserves to be acquitted. 13. In the result, the appeal is allowed and the order of conviction and sentence are set aside. The appellant is acquitted of the charge and he is directed to be released forthwith if not wanted in any other case. ( Shyam Kishore Sharma, J. ) ( Gopal Prasad, J.) Patna High Court, Patna The 22nd July, 2010 Tahir/-(NAFR).