Criminal Appeal (SJ) No.2 of 1996
Against the judgment dated 14. 12. 1995 and order of
sentence dated 15. 12. 1995 passed by Shri Manohar
Prasad, 6th Additional Sessions Judge, Bhagalpur,
in Sessions Trial No. 90 of 1987/88 of 1988.
1. Ram Lal Singh, son of Late Janki Singh.
2. Pramod Singh alias Chutus Singh,
Son of Ram Lal Singh, both residents of Village-
Nasrat Khani, Police Station- Nath Nagar,
District- Bhagalpur.
.... .... Appellants.
Versus
The State Of Bihar
.... .... Respondent.:
For the Appellants : Mr. Rama Kant Sharma, Sr. Advocate.
Mr. Rajesh Kumar, Advocate.
Mr. Arun Kumar Pandey, Advocate.
For the Respondent
State : Mr. Sujit Kumar Singh, A.P.P.
PRESENT
THE HONOURABLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J. Heard learned counsel for the appellants and
learned counsel for the State.
2. The appellants have been convicted under
Section 307/34 of the Indian Penal Code. Appellant No. 1,
Ram Lal Singh has been sentenced to undergo rigorous
imprisonment for five years and Appellant No. 2 Pramod
Singh alias Chutus singh has been sentenced to undergo
rigorous imprisonment for seven years.
3. The prosecution case as alleged by the
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informant Bhudeo Prasad Yadav that he heard the sound of
cry and then family members ran there and saw his
nephew Sunil Yadav fallen injured state. He disclosed that
Ram Lal Singh and Pramod Singh have assaulted by
Hasua and Pathria. Thereafter, he got unconscious till
today of Fardbeyan. There is injury on his ear, nose,
mouth and neck. On the basis of Fardbeyan, F.I.R. was
lodged. After investigation, charge sheet submitted. On
submission of the charge sheet, cognizance taken and the
case was committed to the Court of Sessions where the
charge was framed under Section 307/34 of I.P.C.
4. During trial ten witnesses were examined, who
are P.W.1, Bisundeo Yadav, P.W. 2, Govind Mandal, P.W.
3, Rajendra Yadav, P.W.4, manoj Yadav, P.W.5, Radha
Devi, P.W.6, Sunil Kumar Yadav, P.W. 7, Bhudeo Yadav,
P.W. 8, Dr. N. K. Choudhary, P.W.9, Deep Narain Singh
and P.W. 10, Ram Narain Singh. On considering both
oral and documentary evidence, the order of conviction
was recorded.
5. Learned counsel for the appellants however,
contends that in the prosecution case, there is contradiction
in weapon used and in the Fardbeyan there is mentioned
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that weapon is Hasua and Pathria, bur during the trial it
has developed Pasiyani Hasua and the injury report is
copied and hence copy of injury report has not been
proved and the evidence of the Doctor on the basis of copy
alleged to be original is not sustainable and in the
secondary evidence it has not been established and no step
has been taken for bringing the original and original injury
report has not been brought to prove the injury and the I.O.
has also not been examined and there is contradiction in
the evidence of the evidence of the witnesses who are
interested and inimical and hence, there could not be
brought to be reliable. Hence, prosecution has not been
able to prove the charges.
6. However, the prosecution in the Fardbeyan of
the informant, Bhudeo Yadav, P.W. 7 stated that on cry of
Sunil Yadav, he along with other family members ran and
found his nephew Sunil Yadav is injured state fallen there
who disclosed on inquiry that Ram Lal Singh and Pramod
Singh have assaulted by Hasua and Pathria, but he could
not speak out why he was assaulted and got unconscious
and is still unconscious so Fardbeyan of Bhudeo Yadav
was recorded by A.S.I. on 27. 03. 1986 at about 11 hours,
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though, occurrence alleged to quarters to 12 mid night in
the preceding night.
7. However, P.W. 7, the informant has
supported the prosecution case in the Fardbeyan, but that
one difference is there that he has stated on enquiry Sunil
Yadav disclosed that Ram Lal Singh and Pramod Singh
assaulted by Pasiyani Hasua and he was taken to Medical
College Hospital, Bhagalpur where Daroga recorded in his
statement since the victim was still unconscious.
8. However, P.W. 1 has also supported the
prosecution case and has stated that on hulla he along with
three persons P.W. 1, 7 and 4 ran to the place where Sunil
was lying injured and disclosed about assault by Pramod
Singh and Ram Lal Singh by Pasiyani Hasua. P.W. 4 has
also supported. However, has developed that he identified
two persons fleeing away were Ram Lal Singh and
Pramod Singh. However, P.W. 1 has stated that he along
with P.W. 5 and 4 went to the place of occurrence, P.W.1
and 7 have not stated about fleeing away of two persons.
9. P.W. 6 is the victim. However, he has stated in
his evidence that he was singing holy song at the darwaja
of Mukhiyaji. Pramod also singing holy son and Pramod
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asked to follow him to his dinner. Then he went there. He
has further stated he took meal and sat in a room on cot
then it is alleged that Pramod came with a rope and tied
with his neck or try to pull it and Ram Lal assaulted by
Pasiyani Hasua on his neck then he start fleeing and fell
down on the back of his house. Both accused persons also
chased him and assaulted him on fallen state and on hulla
inmate of the house came then accused persons flee away
then they carried him and he disclosed about assault. His
statement was recorded after 2-3 days. However, he has
stated that there is enmity with the accused persons with
regard to the land. He has further stated that there was
enmity. He has further stated that house of Mahesh is at a
distance of 5-7 katha in the west and house of the accused
persons about 15 to 20 steps from the house of Mahesh.
He has further stated he was singing holy song and there
are several people, but he did not remember who was
drumming Dhol and who was on Jhal. He has further
stated that he was singing song and from the house of
Mukhiyaji even to take dinner and he had made hulla at
the dawarja of the Mahesh.
10. P.W. 7, Bhudeo Yadav has stated in his
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evidence that at the time he ran to the place of occurrence
at that time also singing of the village was going on, but
none came there. He has further stated that he went to the
persons who were singing, but none came. He has further
stated that Police Chouki at a distance about 1/4 k.m. and
Jawahar Talkies House at a distance of 40 yards and Fari is
at distance of 250 yards, but they did not go to the Fari.
He has further stated that several people of the village
came to the dawarja, but he can not say the person came
was his friend or not ?
11. However, P.W. 8, is the Doctor, who
examined in the case has proved the injury of Sunil Yadav
and has stated that the following injuries;
1. Incised wound 8″ x 2-1/2″ mandible has been
incised extending from cheek sharing to left
side cutting of occipital region with loss of
lobula.
2. Incised wound 5″x 3-1/4″ muscle deep
antsialy and bone incised postriaty. Left side
of face above injury no. 1 exticing across the
pinne of left ear to the mastoid region of left
temporal bone.
3. Incised wound 1″ x ¾” skin deep left
shoulder.
4. Incised wound 2″ x 1″x muscle deep- Left
7side of upper part of neck.
5. Incised wound 3″x 3/4″ bone exposed- Left
side of cheek extending from filtrum to left
rygomatic region.
6. Incised wound 5″x 3″ bone exposed- Rt.
Deltoid region.
Pulse was not fill at the time of admission.
B.P. was also not recorded and has proved
injury report in his pen as Exhibit-3.
12. However, he has stated in his cross-
examination that at what time he examined the patient is
not mentioned in his report. He has not further stated that
at what time he was on duty that he can not say without
taking to his duty card., He has further stated that the
patient has directly appeared and was informed by him.
He was on duty, but no Incharge of the emergency ward
was there when the patient turned then he examined the
patient on that day. He has further stated that at the
moment there is not record at what time of admission and
examination and discharge of the patient. However, injury
report Exhibit-3 has been proved which bears signature on
27. 06. 1986.
13. However, injury report Exhibit 3, is dated
27. 06. 1986 whereas Doctor in his evidence stated that he
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examined on 23. 03. 1986 in his evidence and time of
examination has not been mentioned neither in his
evidence nor in the injury report. However, six injuries
were mentioned. Out of six, two injuries have been shown
to be grievous and rests are simple. However, injury
shows grievous are sharp cutting but there is no reason
assigned for. However, Injury No. 1 shown to be grievous
due to loss of lobule.
14. However, during argument, it has been
impressed that the Doctor may have copied out injury
from the injury register. However, injury report itself
appears to be doubtful when the date of occurrence is 27.
03. 1986 and injury report is dated 27. 06. 1986 and there
is no mentioned in the reason about change of date either
in his evidence or in the injury report and even learned
counsel for the appellants has contends that if it is copied
out any original then it is secondary evidence and does not
at all shown where original is lying and no attempt was
made for bringing the original injury register to prove the
injury.
15. However, having regard to the fact, Doctor
gave evidence on the basis of Exhibit-3 injury report
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which does not mention the time. Doctor in his evidence
has stated that he did not remember when he examined the
patient and time has not been mentioned in his report and
hence time of occurrence not mentioned when there is no
mentioned when he examined the patient in the injury
report does not mention the date and time of examination.
16. Hence, taking into consideration of
evidence of the Doctor and injury report, the injury report
does not inspire confidence. The I.O. has also not been
examined.
17. Taking into consideration the facts and
circumstances, though, P.W. 1, 3, 4 and 7 has supported
the prosecution case about assault, though, P.W. 1, 4, 6
and 7 have supported the prosecution about assault, but
P.W. 1, 3, 4 and 7 are interested witnesses and there is
contradiction about weapons. Further development, P.W.4
says that he saw two persons fleeing away and victim also
says that he saw two persons came and assaulted him,
however, in the prosecution case that appellants singing
holy song in the village and he went with accused to take
dinner on the request of Pramod. However, there is prior
enmity between the parties. Further, about the occurrence,
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P.W. 7 has stated that several persons came. He has also
stated at the time of singing holy song in the village going
on he went and informed the persons who singing song,
but they did not turn up. He has also stated that there are
houses of several persons who are follows, but none turn
up. No independent witness has turn up in the prosecution
case to depose and evidence of the Doctor does not inspire
confidence neither original injury report has been brought
and the injury report proved Exhibit 3 is dated 27. 06.
1986 whereas occurrence is dated 27. 03. 1986 and there is
no explanation by the Doctor about date. Further evidence
of the Doctor that he did not record the time, hence
evidence of the Doctor stated above does not inspire
confidence. The I.O. has also not been examined in this
case and no independent witness has turn up to support the
prosecution case when the prosecution case is that victim
was singing holy song in the village, but none turned up.
P.W. 7 though, has stated that several persons came in the
house after occurrence. Further it has come in evidence
that Fari and T.O.P. at a distance of few yards/ at a quarter
mile, but matter not reported in the night and F.I.R. drawn
on the next date itself cast doubt.
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18. Hence, under the facts and circumstances, I
find and hold that in this case, accused persons are entitled
to benefit of doubt as the prosecution has not been able to
prove the charges beyond all reasonable doubt. Hence
order of conviction and sentence recorded by the lower
court is hereby set aside and the appeal is accordingly
allowed. Appellants shall discharge from liability to bail
bond if any.
Patna High Court ( Gopal Prasad, J.) The 4th August, 2011. NAFR/m.p.