JUDGMENT
S.K. Agarwal, J.
1. Heard learned counsel for the appellants and learned A.G.A.
2. This appeal arises out of an order and judgment convicting under Section 324/34, I.P.C. and sentencing the above appellants to R.I. for one year and a fine of Rs. 500/-. In the default of payment of fine they were further directed to undergo R.I. for six months.
3. The brief facts of the case are that the victim of the incident Jagdev was standing at the gate of his beda (gher) along with his servant Pargava. The appellants came there. Appellant Babua was armed with Barchi, Appellant Anil s/o Chhotey Lal, Ram Das s/o Ramadhin and Ram Naresh s/o Ram Das were armed with guns. Ramdas is the father of Babua and Ram Naresh appellants. Anil Kumar is alleged to be their khandani. The parties are collaterals. At about. 4.00 p.m. appellants appeared at the beda of informant Jagdev. It is further alleged that when Jagdev and Pargawa were running back first to enter their beda all the three appellants armed with firearms opened fire from their respective weapons. The victim was taken to his house from his beda and after getting the FIR transcribed by Sheocharan, Jagdev, proceeded along with the witnesses to the police station Tindwari. The report was registered there at 7.30 p.m. on the basis of the written report Ext. Ka-1. The distance between the police station and the place of the incident is five miles. Jagdev allegedly was medically examined on 9-8- 1981 at 11.00 p.m. by PW 5 Dr. P.N. Nigam. He had sustained one wedge shaped punctured wound of entry measuring 1.4 cm x 1.00 cm x 12 cm over the lateral side of left thigh, 14 cm above from the knee joints. Edges lacerated and everted blood was oozing from the wound. Exit wound was noted 0.8 cm x 0.5 cm x 12 cm over the medial side of left thigh. 14 cm above from the knee joint. Edges lacerated and inverted blood was oozing from the wound. The injuries were found simple caused by sharp penetrating weapon.
4. The appellants were convicted by the learned Sessions Judge believing the evidence of three prosecution witnesses namely Jagdev PW 1, Pargawa PW 2 his servant and PW 3 Tiruva.
5. Apart from these three witnesses the prosecution has also examined PW 4 H.C. Ali Hasan who had received the FIR and prepared the check report etc. Dr. P.N. Nigam PW 5 had conducted the medial examination of injured Jagdev, Jay Dayal Singh, PW 6, is the Investigating Officer in this case. The defence has denied the prosecution’s case altogether and alleged its involvement in the case on account of existing deep seated enmity with the informant and the witnesses.
6. So far as the enmity is concerned, it is proved on record beyond any doubt. It is clearly admitted to all the witnesses that their relations were sore for the last -3-4 years. The evidence further indicates that the parties were involved in various civil and criminal litigation. The incidents of marpit on both sides had taken place in past. The conviction also resulted into some of those incidents. In the result the animosity between the parties undoubtedly was deep seated.
7. So far as the witnesses are concerned, the criticism is that they are inimical and partisan. Their presence on the spot of at the relevant time is also highly doubtful. To evaluate this argument the evidence of these witnesses is to be closely examined. The reason behind this examination is the high degree of enmity between the parties.
8. In the FIR the weapon of the assault is alleged to be Barchi as disclosed by PW 1. Barchi is round shape long pointed weapon and ballam is a weapon having sharp edges on both sides and pointed at its end. The informant PW 1 had stated that he was assaulted with the Barchi but then qualified it by saying whether this Barchi was long and pointed one and had four edges he could not see. Then stated probably it had four edges. He had further that he could not see whether it was sharp on its sides This was the statement of almost every witness in their statement under Section 161, Cr.P.C. These witnesses were confronted with 161 Cr.P.C. statement, that they have set up a case of assault by the ballam at that stage. This somersault on the part of the witness regarding weapons of assault can very easily affect the nature of his injury. The injury sustained by the victim is wedge shaped. The weapon having penetrated to the end and had created and exist wound also. It clearly indicates that the weapon used was not a ballam but was a four edged instrument. Wedge shape can certainty be the result of use of a chaupahla having four edges. In order to remove this anomaly in his statement this witness had made changes regarding shape of the weapon repeatedly. In the result the injury cannot be attributed either to the use of a barchi or a ballam. It clearly indicates that at the time of occurrence, no one could identify the weapon of assault and therefore dwelt upon their imagination in trial.
9. The submission of the defence is that the incident had taken place after the fall of darkness. This fact can be ascertained from the admission by PW 1, injured. According to him he entered in the inner court yard of beda after sustaining injury. A lot of blood had fallen there. He was taken from there on the arms of the witnesses to his house. He remained there lying on a cot outside his house and after about an hour or so he dictated the FIR and thereafter proceeded on bullock cart for the police station. As already noted in the preceding paragraph that the distance between the place of occurrence and the police station is five miles. Admittedly it had taken about 1, 1 1/2 hour in reaching the police station. In the circumstance the assertion of the prosecution that the informant reached the police station by 7, 7.30 p.m. does not stand to reason on any count. The delayed medical examination further corroborates that the incident had taken place at some late hour as alleged by the defence and not at 4.00 p.m. as alleged by the prosecution. This is further strengthened by the circumstance that the blood stained clothes were not taken into custody either by Head Moharir or the Sub Inspector. The G.D. of this case was not to the Superior Officer on 9-8-1981. It had reached on 11-8-1981. No investigation in the case was commenced till next day.
10. According to PW 1 the witnesses of the incident remain stationed at the police station throughout the night. No apparent reason regarding stay at the police station for whole night is available from his statement. The head constable had denied this fact that the witnesses, stayed at the police station throughout the night. Sub Inspector PW 6 who had investigated the case had stated that this witness and the victim had never returned to the police station from the hospital. PW 3 had admitted that Sheo Charan, the scribe of the FIR had arrived in village Tindwara on the same evening. But contrary to this statement PW 1 stated that this witness, scribe of the FIR, was present in his house for the last two days. Sheo Charan is resident of a village separated by five miles from the place of the incident. In all probability Sheo Charan was summoned from his village and the FIR was transcribed much afterwards either at the police station or at the residence of the informant. Even the FIR in the above circumstances appears a doubtful document with regard to its time of preparation and registration. The FIR appears to have been prepared next day after medical examination. Even the medical examination in this case is suspicious. PW 5 Dr. Prakash Nigam has initially stated that no Chitthi Mazroobi was sent to him and he had not prepared the injury report on the back of the Chitthi Mazroobi which is normal practice prevalent in this part. Subsequently he had stated that it was received by him but no injuries were noted on its back. PW 3 has admitted initially that the medical examination of the victim had taken place at about 11.00 p.m. in the night of the incident itself but later on he had admitted that the victim was examined by the doctor next morning. In such circumstances it is my confirmed opinion that the medical examination of this victim had not taken place during night. It had been conducted next morning and the FIR was also transcribed thereafter. It is an antetime and antedated document and no reliance on it as well as medical report can safely be placed.
11. So far as PW 2, Pargava and PW 3, Tiruva are concerned PW 2 is nephew of PW 3 On a perusal of their statement it is clearly indicated that his statement on most part is contradictory of PW 1. PW 1 had stated that the incident had occurred on the south of his beda in front of his gate PW 2 had stated contrary to it that the incident had occurred on the north where the gate is situated. According to him fire upon the victim Jagdev PW 1 was resorted to by three firearm men when their one foot was inside the beda and other one outside it whereas Jagdev’s statement runs contrary to this witness. Jadgev has very categorically stated that the fire was resorted to by three appellants armed with firearms when he had entered his inner courtyard and was in the middle of it. As a matter of fact no evidence whatsoever is available to corroborate the prosecution witnesses on this part of their case. It is admitted that no cartridge and pellets were recovered from inside the courtyard. Amongst the appellants Ram Naresh and Ramdas were armed with gun. Appellant Anil Kumar was armed with rifle. The presence of the pellets and ballam in the circumstances inside the beda is also doubtful because Investigating Officer reached the beda on next day. He did not find any thing inside beda. Even no blood was found. The injuries apparently show that the blood must have oozed from both the entry and exist wound. The injury report also lends assurance to this. Injury report very clearly shows oozing of blood from both these injuries. If the injured was assaulted in front of beda it was most probable that the blood would have trickled down and left a trail upon the place where entire incident had occurred up to inside the courtyard. According to PW 2 he was taken into one of the room attached to courtyard of his beda and large amount of blood fell there. But no recovery of blood from this beda or room further raises doubt in the veracity of the evidence. Even if we accept the story of rainfall as alleged by the PW 1 atleast blood must have been recovered by the Investigating Officer from the room.
12. In view of the above discussions this appeal deserves to succeed and is accordingly allowed. The conviction and sentences of the appellants under Sections 324, 34, IPC as awarded by the learned trial Court are hereby set aside. Appellants are on bail. They need not surrenders. Their bail bonds are cancelled and sureties are discharged.