CRIMINAL APPEAL No.408 OF 1988 (Against the judgment and order of conviction dated 4th of July, 1988 passed by Sri Shyam Deo Singh, IInd Additional Sessions Judge, Bhagalpur in Sessions Case No. 23 of 1982) ********** 1. Harkhit Sharma, son of Late Dharmu Sharma 2. Narsingh Sharma, son of Late Dharmu Sharma 3. Mahendra Sharma, son of Late Chunchun Sharma 4. Rajendra Sharma, son of Late Chunchun Sharma 5. Shambhu Sharma, son of Late Chunchun Sharma 6. Mantu Sharma @ Mantu Kumar Sharma, son of Late Chunchun Sharma 7. Daya Nand Sharma, son of late Munni Sharma 8. Chamak Lal Sharma @ Chamaklal Roy, son of Late Munni Sharma. …….………….Appellants) Versus The State of Bihar --------------(Respondents) For the Appellants : Susri Shashi Bala Verma, Adv(A.C.) For the State : Sri Dilip Kumar Sinha, A.P.P. P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON'BLE SRI JUSTICE DINESH KUMAR SINGH ********** 2 Dharnidhar Jha & Dinesh Kumar Singh, J.J. The eight appellants were charged under Sections 148, 149 and 302 of the I.P.C. by the learned IInd Additional Sessions Judge, Bhagalpur in Sessions Case No. 23 of 1982. Four of them, namely, Rajendra Sharma, Mahendra Sharma, Sambhu Sharma and Mantu Sharma were distinctively charged under Section 148 of the penal code whereas the remaining four out of the eight, namely, Dayanand Sharma, Harkhit Sharma, Narshingh Sharma and Chamak Lal Sharma were charged under Section 147 of the penal code. While delivering the judgment on 4th day of July, 1988, the learned Trial Judge found all the appellants guilty of committing offences under Sections 302/149, 307/149 of the I.P.C. and directed each of them to suffer rigorous imprisonment for life as also for another term of seven years under the above respective heads. Appellants No. 3 to 6 were found guilty of committing offence under Section 148 of the I.P.C. and each of them was directed to undergo rigorous imprisonment for two years. Likewise, appellant Nos. 1, 2, 7, and 8 were held guilty of committing offence under Section 147 of the I.P.C. and each of them was directed to suffer rigorous 3 imprisonment for one year. The above order of conviction and sentence recorded and passed against the appellants are being challenged before us through the present appeal. The allegation in the F.I.R. was that the informant and the deceased Bharat Lal Sharma were sitting on their Basa when all the accused persons armed with Bhala, Garasa, Farsa, etc came there and they started dismantling the Basa of the informant. On being objected to, all the appellants assaulted the deceased Bharat Lal Sharma, full brother of the informant and the informant also. Both were badly injured. There were specific allegations of assault in the fardbayan and it was alleged that appellant Mahendra Sharma and Rajendra Sharma dealt farsa blows to the deceased while others assaulted the informant with lathies, as a result of which the informant received injuries on or around his right ear, right elbow, on head and right side of the chest. It was stated that the appellant Mahendra Sharma and Rajendra Sharma dealt farsa blows to the deceased Bharat Lal Sharma. It was also stated that P.W.1 Nityanand 4 Chaudhary, Amrit Rai (are examined) while Ambika Sharma, Shibnarain Sharma (both not examined) who were the neighbours of the informant, came there and saw the occurrence. It was alleged that some of the appellants were cousin brothers of the informant and there were some litigations between the parties. On the basis of fardbeyan of P.W. 2, F.I.R. of the case was instituted and the investigation was undertaken by P.W. 4, Sheo Shankar Prasad Gupta, A.S.I, who inspected the place of occurrence, examined witnesses, sent the body for post-mortem examination and after completion of the investigation, sent up the appellants for trial. The defence of the appellants was that no occurrence ever took place in the manner as was alleged and further that on account of enmity between the parties, they were falsely implicated. The prosecution examined 4 witnesses out of whom P.W. 1 Nityanand Chaudhary was a witness named in the F.I.R. and supported the story of the informant of being assaulted by the appellants. P.W. 2, Lakhanlal Sharma is the informant. P.W. 3 is Dr. Narayan Gopal Bandhopadhya who had held the 5 post-mortem examination on the dead body of the deceased and had also examined P.W. 2 Lakhanlal Sharma for his injuries and had issued the post- mortem report (Ext-1) and the injury report(Ext-2). As just pointed out, P.W. 4 Sheo Shankar Prasad Gupta, A.S.I. had conducted the investigation of the case. We were taken through the evidence of the witnesses by Susri Shasibala Verma, whom we appointed amicus curiae to assist us on account of reason as appears in order dated 16.07.2010 passed in the present appeal. It was contended by Susri Verma that P.W. 1 could not be a reliable witness and as regards P.W. 2, his evidence itself is sufficient to hold that he may also not be a witness to be relied upon as it appears a probability that he might have not been seen the assault given to the deceased. P.W. 4 A.S.I., Sheo Shankar Prasad Gupta the officer who investigated the case has stated in his evidence that one of the appellants namely Mahendra Sharma was arrested by him and on examination of his person P.W. 4 was found that he had a bleeding injury on the back of his 6 head and as such he issued a injury report and sent him to the Doctor for examination. It was submitted that the injury report of Mahendra Sharma was never produced by the prosecution and it could be a probability that there was some altercation between the parties and the prosecution had given a wrong reason for the occurrence having taken place and as such the prosecution may be guilty of suppressing the truth. Sri Dilip Kumar Sinha, learned counsel appearing on behalf of the State has submitted that may be that the witnesses might not have specified the assault as to how and by whom the deceased or the informant were assaulted, but they have given an acceptable version of the incident that the two were assaulted by all the accused persons and the reports Ext-1 and 2, i.e., the post-mortem report and the injury report lend support to the oral testimony of the witnesses as a result of which the conviction of the appellants appears quite sustainable in law. The reason for the incident as stated in the F.I.R. was that the accused persons came and started dismantling the Basa of the informant as they laid 7 their claim over the land over which it was standing on. Some part of the Basa was damaged by the appellants. This fact was found by P.W. 4, the Investigating Officer that some part of the roof of the Basa was found damaged as may appear from the evidence of P.W. 4 in paragraph 3. However, when we were being taken through the evidences of the witnesses, we came across the fact that the real reason for the occurrence was something otherwise. As per P.W. 1, Nityanand Chaudhary, the dispute arose on account of flowing the water out from the angan of the informant through that of appellant Harkhit Sharma and that was objected to and as such accused persons started creating a ridge so as to obstructing the flow of water. P.W. 1 was stated that the ridge was about 10 cubits in length, 1 cubit in height and also 1 cubit in breadth. This evidence could be found in paragraphs 16 and 17 of P.W. 1. This witness gets cited as a witness in the F.I.R. and as such we find that the witness does not appear supporting the genesis of the occurrence as regards the claim of the informant that the occurrence generated as the accused persons attempted to dismantle his Basa. 8 So far as suppressing of the real story is concerned, we again refer back to the evidence of P.W. 1 in paragraph 22 in which he has stated that the deceased had also a Kudal in his hand and that kudal was wielded by him as may appear from paragraph 28 of the evidence of P.W. 1. This could probably be a reason that appellant Mahendra Sharma was having an injury on his head and another swelling injury on his left arm. The police arrested him and sent him with injury report to the Doctor as may appear from the evidence of A.S.I. Sheo Shankar Prasad Gupta P.W. 4 in paragraph 6. It could be a legitimate expectation that the officer who had sent the injured Mahendra Sharma for his medical examination to the Doctor on account of finding a bleeding injury on his person must have obtained the report and must also have come across the reason as to why and how he was injured. It was desirable that the prosecution ought to have produced the injury report as the same was in its custody, but that was not done. Besides, we find that the evidence of P.W. 2, the informant is such which makes it very difficult for us to place reliance upon it. He was injured, there could not be any doubt in it as P.W. 3 Dr. Narayan Gopal Bandhopadhya had 9 found a number of injuries on his person as may appear from his evidence in paragraph 11., but how could he have to had those injuries on his person, in spite of being stated in the fardbeyan, does not appear supported by him in his evidence. Likewise, we further find that he would not state specifically as to who had assaulted the deceased though he had made specific allegation of dealting Bhala blow to the deceased against appellants Rajendra Sharma and Mahendra Sharma as may appear from the reading of the fardbeyan. In addition to the above, what we find from the evidence of P.W. 2 in paragraph 15 is that after being assaulted by the accused persons he fell down and went into unconscious, but was still peeping through his pupil so as to see the other part of the occurrence. We are not ready to accept the evidence of P.W. 2 on account of the above reasons that in spite of being unconscious and lying on the ground he was seeing the occurrence. The other important circumstance which appears pointed out by the learned Trial Judge was that Mahendra Sharma was alleged to have given farsa blow to the informant, but he himself was admittedly found having a fracture on right wrist on 10 account of which he had no control over his grip. This evidence appears coming from the evidence of P.W. 2 in paragraph 8 and the record made by learned Trial Judge in that paragraph that Mahendra Sharma was injured and fracture was caused to him by the informant and others is admitted in paragraph 9 of his evidence. Both the witnesses have categorically stated that there were series of litigations in the past between the parties and they had been litigating on the day and the witnesses were also deposing to this fact. We find that on account of inimical background of the parties, it is not at all safe to place reliance upon the evidence of P.W. 2 and to uphold the conviction of the appellants. It is true that Bharat Sharma was assaulted and was killed, but the evidence of the two witnesses does not inspire our confidence and as such we find that it was a good case the Trial Judge ought to have given benefit of doubt to the appellants and to have acquitted them. In the result, we set aside the order of conviction and sentenced passed by the IInd Additional Sessions Judge, Bhagalpur against the 11 appellants in Sessions Case No. 23 of 1982. As all the seven appellants are on bail, they are discharged from the liabilities of their bail bond. We record the assistance rendered by Susri Shashibala Verma in hearing of the present appeal and as such we desire that a fee of hearing be paid to her by the Patna High Court Legal Services Committee. Let a copy of this present judgment be made over to Susri Verma for that purpose. Patna High Court, Dated 20th of July, 2010 Shageer/NAFR (Dharnidhar Jha, J) ( Dinesh Kumar Singh, J.)