JUDGMENT
S.N. Pathak, J.
1. This appeal is directed against the judgment dated 29-8-1991, passed by the Additional Sessions Judge-l, Patna, in Sessions Trial No. 89 of 1984. Appellants Shamsher Ram and Lallan Ram alias Lalan Ram were convicted under Section 364 of the IPC and were sentenced to undergo R. I. for five years. They were further convicted under Sections 326/149 of the IPC and were sentenced to undergo R. I. for five years. These two appellants were further convicted and sentenced under Section 147 of the IPC to undergo R.I. for six months. All the sentences awarded against them were directed to run concurrently. The appellant Dinesh Ram was convicted under Section 326 of the IPC and was sentenced to undergo R.I. for five years. He was further convicted under Section 148 of the lPC. He was sentenced to undergo R.I. for one year, his sentences running concurrently.
2. The case of the prosecution was projected through the fardbeyan of one Manogi Ram, who alleged in his fardbeyan (Ext-4), that on 7-6-1978, he came to Bihta by a Mini Bus and alighted from the Bus to the south of the Railway Gumuti. Suddenly his villager Shamsher Ram, Lallan Ram along with one unknown person surrounded him and forcibly made him sit on a Scooter. Subsequently, the pillion was taken to the informant’s village, Dalawarpur, and during the course of this kidnapping, the informant was seated in the middle of the vehicle, one person was sitting on his front and one person was sitting behind him, having a tight grip of his waist The informant was taken to the house of Shamsher Ram where Lallan Ram and others, as named in the fardbeyan including Dinesh Ram, subjected him to fisting and slapping. During the course of this assault, the informant cried out for help, but nobody came to his rescue. Dinesh Ram dealt Tangi blow which resulted in the chopping off of his left leg (perhaps from near the knee). The informant then fell unconscious. He was carried to the Bihta Hospital from where he was referred to the P.M.C.H. The accused-appellants have taken the defence of false implication on account of enmity.
3. The prosecution had examined eight witnesses. PW-8 Onkar Nath Jaiswal was the orthopaedic surgeon who stated that on 7-6-1978 he was posted in the P.M.C.H. when one Manogi Ram was brought to the hospital. His felt leg was found to be amputated. He treated that patient and noted down the treatment in the S.O.D. Book. The entry in the S.O.D. Book in the P.M.C.H. having reference to Manogi Ram under E.O. No. 4153 was Exhibited (Ext.-6), but all the statements in this entry referred to the Drugs and Medicines which the doctor prescribed for Manogi Ram. There is no reference to any injury except that the patient had his left leg amputated, neither the pulse nor B.P. of the patient was mentioned. In the cross-examination, this doctor admitted that there is no mention of injury, the patient had sustained, in the S.O.D. Book. He further admitted had there been any injury report before him, he would have mentioned description of the injury and the weapon with which the injuries were caused upon the patient. The aforesaid statements of this doctor have shrouded the whole case of the prosecution in mystery. As per the case of the prosecution, Manogi Ram was first brought to the Bihta Hospital for his treatment where the doctor immediately referred him to the P.M.C.H., Patna after giving him first aid. This doctor was examined in Court as P.W. 4, who had seen the patient Manogi Ram, when he had been brought to his hospital on 7-6-1978 at 2.10 p.m. This doctor referred to the entry in the register of his hospital. This was entry No. 5971 of Out Door patient. This doctor said that this entry was written by him, but this entry perhaps was the closing entry of 7-6-1978 at page 54 (Ext-1). Under the Entry No. 5917 the name of Manogi Ram was written in Hind language and the doctor P.W. 4, who said that he had written this entry, wrote the injury of the patient in English which was to the effect ‘left leg chopped off…..he has referred to the P.M.C.H.’ Other entires on this case on 7-6-1978 are indifferent ink and the entry under 5917 is indifferent ink and in different language. In such circumstances the mystery relating to the alleged injury suffered by Manogi Ram becomes further deepened, as to whether he had, of course, got his left leg amputated on account of injury sustained by him at the hands of the appellants in the manner as alleged. P.W. 4 said that he gave first aid to Manogi Ram and then referred him to the P.M.C.H. Patna. He admitted that he did not prepare any separate injury report in the entry relating to Manogi Ram. He admitted that on page 54 there was black space after the entry of Manogi Ram. Thereafter, entry relating to the dated 8-6-1978 began. He admitted that Entry Nos. 5916 and 5917 were in his pen, but in different ink. He further admitted that the style of writing in the English language and Hindi language under Entry No. 5917 was different.
4. P.Ws. 5, 6 and 7 are the police officers, who had done part investigation of this case. PW-7 was the I.O. of the case, who had recorded the fardbeyan of the informant, Manogi Ram, at Bihta Hospital, but it is to be noted that in the fardbeyan (Ext-4) there is no endorsement by PW-7 that he was recording the fardbeyan of Manogi Ram at Bihta Hospital. So the basis of the case which was the fardbeyan also appears to be a shady document. It is the normal clear practice of the police officers to mention as to where and at what time and at what place, they are recording the fardbeyan of the informant. There is no such mention in the beginning of the fardbeyan (Ext-4), except the statement that it was the fardbeyan of Manogi Ram. Besides the above, PW-7 admitted that on 7-6-1978 one Maheshwari Devi came to the police station and told him that Shamsher Ram, Lallan Ram, Dinesh and others were assaulting the elder brother of her husband. This police officer after recording the aforesaid statement in the station diary entry went to the village Dilawarpur at 10.30 p.m. He visited the place of occurrence which was Dalan of Shamsher Ram and he learnt that the assistant had escaped after assaulting the informant. He inspected the place of occurrence and found several trampling marks at the P.O. He carried Manogi Ram in his police vehicle and brought him to the Bihta State Dispensary. He recorded the fardbeyan after he regained consciousness. The evidence of PW-4 has been criticised that he failed to produce the blood-stains which he had seized at the P.O. in the Court and he also failed to produce the report from the Forensic Science Laboratory to confirm the fact that the samples of blood which he collected was that of the human blood. The evidence of other police officers is not relevant in this case, because they had done part of investigation and some of had submitted charge-sheet. PW-3 was a formal witness who brought to the Court Out Door Register of Bihta Hospital. So his evidence is immaterial. PW-2 was Maheshwari Devi. She said that on alarm, she went to the house of Shamsher Ram, where she found Shamsher Ram, Dileshwar Ram, Shri Bhagwan Ram, Bijendra Ram, Lallan Ram assaulting her husband’s elder brother. She claimed to have been the assailant in continuing the assault upon Manogi Ram and one of the assailants. Dinesh Ram dealt such a Tangi blow upon the victim which caused amputation of his left leg. Thereafter, she ran to the police station, Bihta, and stated the same to the police officer and came back with the police officer. She said at paragraph-5 that at Bihta Hospital the injured was given some treatment and his leg was tied with a Rubber. The evidence of this PW was criticised on the ground that in Court she figured as eye-witness of this occurrence, whereas before the police she had said that she had learned about the alleged assault from others. However, this discrepancy in her evidence with her purported statement to the police was not taken in her evidence so this criticism is misdirected. The S.D. entry, which was the first version of the occurrence was not brought on the record of the case which also had thrown doubt regarding the veracity of the prosecution case as alleged. PW-1 was the informant himself, His evidence is in support of his statements in the fardbeyan. He said in his statement before the Court that on 7-6-1978, he had come to Bihta from Bikram where he had done a day before 7-6-1978. When he alighted from the Mini Bus, he was physically lifted and carried by the appellants in the Company of others after seating him on a motorcycle. He was brought to the house of Shamsher Ram, where he was subjected to assault which resulted in chopping off of his left leg.
5. PW-1 was thus perhaps the only witness of the assault upon him and if his evidence is to find any corroboration, that may be found in the testimony of PW-2, as to whether there is any circumstantial evidence of any one who had seen the injured lying unconscious at the P.O. Next pertinent question arises as to whether of course PW-1 was kidnapped from Bihta and brought to the P.O. village to subject him to assault so that an offence under Section 364 of the IPC may be complete. PW-1 had admitted at paragraph-8 that the place from where he was kidnapped was near the Railway Gumuti, Bihta. There was market near the Bihta Railway Gumuti. He had raised alarm. There were 50-60 persons there, there were shops nearby the P.O. It is significant to be note that the I.O. failed to examine any of the shop keepers nearby the place where the victim was kidnapped. If it is assumed for a moment that the passengers alighting from the Bus and its driver and the conductor were not available for examination, at least the shop keepers in the vicinity were clearly expected to be present there who might have seen the alleged kidnapping and so the I.O. was duty bound to examine these persons to find out the truth relating to the alleged occurrence. This omission on the part of the I.O. would strengthen the mystery and enigma in the prosecution case. Moreover, two other persons named in the charge-sheet as witnesses were neither examined in Court nor there was any explanation for their non-examination. Moreover, at para-9. PW-1 admitted that from the place he was kidnapped, he was carried to Dilawarpur village and on the way to Dilawarpur, there were villages in between. Therefor, if the appellants had any intention to kidnap the informant to kill him, they had no business to bring the victim to their house in the village; in that case they would have easily killed the victim at any place in between Bihta and village Dilawarpur. At paragraph-10, PW-1 admitted that his house at Dilawarpur was situated at the south of the village and the house of the appellants was also nearby. At para 12 he said that there were shops and houses on both sides (sic) Railway Gumuti place was always and the place was always crowded near the Railway Gumuti. This was also circumstance to show that the appellants would not have dared to kidnap the victim from such a crowded place. At paragraph-10 in the closing lines this PW admitted that the accused-appellants are not his collateral but of the same case.
6. The aforesaid doubtful circumstances emerging from the evidence of PW-1 the most pertinent question was, of course, whether the informant sustained injury as alleged and especially amputation to his left left. In this connection, medical evidence to which I have referred to above was that PW-1 had sustained amputation of his leg on the date, as alleged, as a result of assault upon him. If that were the truth, the two doctors who were examined in Court. (PWs 4 and 8) should have referred to the exact injury which they found on the person of PW-1 on the date when he was brought to the hospital. There is no reference in the evidence of any of the doctors that they had attempted to write the chopped off left leg of PW-1 and if at all this was not possible, they should have given the required immediate treatment to save his leg, but there is no reference at ail in the evidence of these doctors as to what treatment they had given to PW-1. PW-2 had said at least in the closing lines that the informant remained in hospital for near about a month, so it was imperative on the part of the prosecution to bring on record the evidence of the doctors who treated PW-1 in the P.M.C.H., Patna for a month. The aforesaid circumstances would, therefore, throw a further doubt whether, of course, PW-1 had received amputation of his led in the occurrence as alleged and on the date and at the time as alleged.
7. At paragraph-7 PW-1 admitted that the uncle of accused Shamsher Ram was convicted in a case filed by this witness, and the cousin brother of Shamsher Ram was also convicted. So there was clear enmity in between the parties. In such circumstances, chance of false implication on account of amputated leg of PW-1 was very much probable. How PW-1 got his leg amputated, whether in any accident or whether in some other way at any other time or on any other date or in the occurrence as alleged was not at all clear from the evidence of the records. It follows that the prosecution has failed to substantiate the charges levelled against the appellants beyond all reasonable doubts. The appellants were, therefore, entitled to benefit of doubt. Appeal is allowed and the judgment of conviction and sentence is set aside.