Sri. Kant Sing and Saroj Kumar @ Binod Kumar vs The State of Bihar

S.N. Pathak, J.—All the aforesaid three appeals were taken up for analogous hearing, because all of them were preferred against the common judgment dated 28th September, 1991, rendered by Sri Subodh Paswan 3rd Additional Sessions Judge, Patna in S.T. No. 68 of 1991. Appellant Raj Kishore Singh, Sri Ram Singh, Ramadhar Singh, Sri. Kant Singh and Saroj Kumar @ Binod Kumar were convicted u/s 307 I.P.C. Convict Raj Kishore Singh was sentenced to undergo R.I. for seven years and the rest of the aforesaid convicts were sentenced to undergo R.I. for three years each. Accused-Appellants Ram Sunder Singh, Kalootan Singh, Jitendra Singh were convicted u/s 307/149 I.P.C. and they were sentenced to undergo R.I. for three years each. Accused Raj Kishore Singh, Ram Sunder Singh, Sri Ram Singh, Ramadhar Singh and Saroj Kumar were further convicted u/s 27 of the Arms Act. They were sentenced to undergo R.I. for three years each. Appellant Kalootan Singh was further convicted u/s 323 I.P.C. but he was not awarded any sentence on this count Ramadhar Singh, Kalootan Singh Jitendra Kumar were further convicted u/s 379 I.P.C. but no sentence was passed against them for this offence.

The prosecution case, as embod ied in the fard-beyan of Arun Kumar, was that on 18th June 1990, at about 8.30 P.M. informant Arun Kumar proceeded to village Chichaul in the company of his father, his brother Purushottam Kumar and his brother in-law, Dhananjay Kumar, from his Motor-part-shop in the Naubatpur market at about 8.30 P.M. when this party of the informant and his family members reached near the C.P. Thakur College on the road at 8.45 P.M., they were confronted by all the accused persons, named in the fardbeyan (eight in number) who were armed with fire-arms as also some other weapons, such as, Fasuli, Daggar and Lathi. All the culprits surrounded informant and his relations and Ram Sunder Singh ordered for murderous assault. Then Raj Kishore Singh fired from his pistol upon the informant''s back. Sri Ram Singh and Ramadhar Singh fired from their pistol which hit the informant''s brother on his leg. Thereafter Sri Kant Singh aimed a Chhura-blow which could not cause any injury on the informant, because he turned aside. Even Saroj Kumar fired from his pistol which could not hit the informant. Kalootan Singh hit the informant''s brother-in-law (Bahnoi) with Lathi. When the informant had fallen down, from the impact of injuries recevied from shots fired at him, he was relieved of his wrist watch by Ramadhar Singh. Kalootan Singh cnatched golden chain from the neck of the informant''s brother-in-law. The informant was further relieved of Rs. 1,055/- (in cash) by Jitendra Singh at the point of Fasuli. The informant''s father fled towards the southern direction raising alarm which attracted the Informant''s villagers which made the assailants fly. The informant''s villager carried the informant Naubatpur Hospital but the informant fell unconscious on the way. The cause of the occurrence as given in the fard-beyan (Ext-1) is the long standing litigation.

The accused apellants took up the defence of false implication on account of enmity.

The prosecution had examined, in all, seven witnesses and it had brought on the record formal F.I.R. (Ext-2), seizure-list (Ext-4 and 4/1), Injury report (Ext-5), bedhead tickets (Exts. 6 and 6/1), besides the fard beyan (Ext-1) to prove its case. The accused-Appellants had examined one witness and they had also brought on the record a particular letter addressed to the Superintendent of P.M.C.H., Patna, by a Police Offier of Naubatpur Police Station (Ext-A). Page 16 of "Kashi Vishwanath Panchang" is marked Ext.-B. P.W. 7 was a formal witness who was Ward Attendant in the Surgical Out-door ward of P.M.C.H. Patna. On 19th June, 1990, he was on duty from 10.00 P.M. in the night up to 7.00 A.M. in the morning. This witness brought Ext-5 and Ext-5/1, the bed-head tickets written by Dr. P.C. Jha. This witness in his cross-examination by the accused admitted that he had received no summons for deposing in the Court nor did he take permission from his Department to come to the Court. P.W. 6 was the Doctor who examined the informant Arun Kumar on 18th June, 1990 at 10.00 P.M. in the P.M.C.H., Patna, as referred to him by Referal Hospital, Naubatpur. This Doctor found laceration on the liver and the right kidney of the injured. The right kidney was removed. Part of a bullet was found embedded in the abdominal cavity of the informant, Arun Kumar, and it was taken out. The Doctor said that this injury was dangerous to life. According'' to the Doctor, this injury was causeway firearm. In cross-examination by the accused, this witness further elaborated his evidence and said that X''ray was taken before operation was conducted. The Doctor further said that the X''ray plate was preserved, but he failed to bring the same to the Court on that date (The X''ray Plate was not exhibited). However, the Doctor mentioned the number of X''ray Plate in his report (Ext-5). The reference letter of Naubatpur Hospital was maintained in the Office_of the Doctor, as he stated further in his cross-examination (the concerned reference letter was also not exhibited). The Doctor further made a significant disclosure that on account of collection of blood, there was hazy appearance and no foreign body was seen in the X-ray plate. P.W. 5 was the I.O. of the case, namely, Jag Narayan Ram. This I.O. visited the P.O. on 19th June, 1990 and he found blood stains at the P.O. which he picked up. He further seized one Chaku, with one Ink-pen (he brought on the record the seizure-list, Exts. 4 and 4/1). Except for certain discrepancies in the. evidence of P.Ws. made in Court compared with their purported statements before the I.O. to which his attention was drawn, there is no other significant aspect of his evidence worth reference.P.Ws. 1 to 4 are so-called eye witnesses to the alleged occurrence and all these witnesses are admittedly inter-related, who are none other than the informant''s brother, P.W. 1 Purushottam Kumar, P.W. 2, Dhananjay Singh, his brother-in-law, P.W. 3, the informant''s father and P.W. 4, the informant himself. The evidence of all these witnesses is more or less identical and, in substance, it is not more than what has been stated at para-2, while describing the prosecution case, as unfolded by the informant''s fardbeyan. The evidence of all these witnesses with respect to assault is almost consistent, except for certain minor discrepancies here and there which do not derogate from the main case of the prosecution with respect to the assault upon the informant and his brother and Bahnoi at the hands of the accused-Appellants. However, certain circumstances, unleashed by the ocular evidence, did constitute as the main plank of criticism levelled by the Appellants'' lawyer which also gains signifi cance, especially in view of the fact that no independent witness has been examined in this case. Moreover, admittedly, as the fardbeyan itself disblosed, and it has also come in the evidence of the P.Ws. the informant''s villagers had gathered at the P.O. on hearing the alarm of the informant''s father. The description of the P.O. which is said to be near the C.P. Thakur College, by the I.O. and by the P.Ws. themselves, would also indicate that Naubatpur market and the informant''s village is within a radius of a few yards from the P.O. Perhaps, that is why the informant and the P.Ws said that villagers had come to the P.O. on hearing the alarm of the informant''s father and they had carried the injured persons, firstly, to Naubatpur Hospital and then to the P.M.C.H., Patna. In this circumstance, examination of independent witnesses at least to support that the informant and his other kith and kin were found at the P.O. in injured condition was imperative in order to lend credence to the informant''s version of the alleged assault upon him at the alleged place and at the alleged time. This having not been done, this was the first notable infirmity in the prosecution evidence. I shall, therefore, refer to other retrograde circumstances hereinbelow. In this connection, the first thing that attracts notice is that the witneses said that the informant was carried to Naubatpur Hospital on a Bench and he was immediately referred to P.M.C.H., Patna, by the Doctor at Naubatpur. But neither any Doctor from Naubatpur has been examined to support the fact that he had first examined the informant and found the injuries so serious as to require his treatment at P.M.C.H., Patna, nor any reference letter has been brought on the record, as it has been seen above. The next circumstance that attracts serious notice is that it is a consistent statement of all the P.Ws. that the informant was nit by shots fired by Raj Kishore from his pistol on his back. The informant (P.W. 4) himself at Page 3 of his deposition stated that he was hit on his back by bullet which got embedded in his right waist-line (Panjara, portion of body above the waist). As it has been seen above, P.W. 6, the Doctor had said that the liver and the right kidney of the injured, Arun Kumar were lacerated. Part of a bullet was removed from the abdominal cavity. So if the informant was hit by fire-arm shot on his back and a bullet entered into his booy through the back tearing the portion of the body above the right waist, there should have been an entry wound on any part of the body through which the bullet entered into his abdomen lacerating the liver and the kidney. The Doctor''s injury report, and his evidence do not disclose that there was an entry wound on the body of the informant. Moreover, the Injury report (Ext-5) shows that there is an endorsement to the following effect:

As per BHT Lapartomy was done and lacerations were found in liver, right kidney was removed for laceration and part of bullet was taken out.

It is not understandable what the Doctor means by removal of the kidney. Moreover, the bullet which was removed should have been brought on the record of the case in order to establish the Doctor''s report, but neither any bullet was produced in the court nor any seizure-list was prepared. The Doctor had further clarified that the X''ray plate of the abdomen did not show any foreign body on account of collection of blood. This opinion of the Doctor also does not appear to be correct, because X''rays are so powerful as to detect in solid mass, like bullet, if the same is embedded in the liver or in any other organ inside the bodily cavity. The aforesaid circumstance emerging from the medical evidence do not appear to be corroborating the ocular evidence to the effect that the injured was hit by any fire-arm, especially aimed at his back or any other part of his body.

There is another circumstance thrown by the evidence on the record which merits serious consideration. Admittedly, the informant was brought to the P.M.C.H. on 18th June, 1990 Itself. There Is a letter written by one Rajiv Nayan, a Police Officer of Naubatpur Police Station camping at P.M.C.H., Patna, and addressing the same to the Superintendent of P.M.C.H., Patna. The contents of this letter are to the following effect. Rajiv Nayan stated that one Arun Kumar was brought to P.M.C.H. for treatment and was admitted into the emergency ward and the person attending on him (perhaps, his relations) told the police officer that Arun Kumar was not in a position to give his statement and, therefore, statements about the occurrence shall be given when Arun Kumar will regain his consciousness. The fardbeyan of Arun Kumar (Ext-1) shows that the fardbeyan was recorded by Rajiv Nayan himself on 19th June, 1990 at 6.30 A.M. It is, therefore, not understandable how Rajiv Nayan affixed the date 19th June, 1990 on the letter (Ext-A) which was brought on the record at the instance of accused-Appellants. So it appears that the letter (Ext-A) was, perhaps, written on 18.6.1990 itself. It is further enigmatic as to why the informant''s father who had remained unhurt and even his brother or Bahnoi who had also received only minor injuries, which I would explain later, and who were admittedly not unconscious, failed to make any statement regarding the alleged occurrence to the first Police Officer who approached them and this Police-officer was no other than Rajiv Nayan of Naubatpur P.S. itself. That would show that Naubatpur Police must have been informed regarding the alleged occurrence or if at all no occurrence took place, as alleged. Rajiv Nayan came to P.M.C.H., Patna, as a friendly gesture to the informant''s family by chance or he was brought there by the informant''s family for the reasons best known to themselves. This would be explained further by the following circumstances which I am hereinbelow discussing.

Admittedly, the informant was brought to P.M.C.H., by his villagers as the statements in the fardbeyan itself indicate and his father and brother must have been attending to the informant in the P.M.C.H., itself, as the contents of the letter (Ext-A) further indicate. Hence, they were duty bound to give statement regarding the alleged occurrence to the first Police Officer who approached them. This having not been done, this was a significant circumstance in order to throw doubt whether the informant had sustained injuries in the alleged occurrence at the alleged place and at the alleged time and whether at that time, he was accompanied by his father, his brother, P.Ws. 1, 2 and 3. So from this, it would follow that P.Ws. 1, 2 and 3 have figured as witnesses on concoction and after deep planning, otherwise there is no explanation for their failure in giving any statement to the Police at the earliest possible opportunity. Moreover, when the informant was brought to P.M.C.H., Patna, as the prosecution case is, the Doctors there were duty bound to intimate the police and in that case the Police Officer from the nearest P.S. (Pirbahore P.S..) must have reached there to enquire about the injuries sustained by the informant. This circumstances is also sufficient to throw doubt whether P.W. 4, the informant was brought to P.M.C.H., Patna, for any injury received by him in an occurrence of 18th June, 1990 at 8.30 P.M. or 8.45 P.M.

The prosecution case is that the informant''s brother, P.W. 1 and the informant''s Bahnoi, P.W. 2, also received injuries by fire-arms, and Lathi respectively. So if they were also injured persons, they should have received treatment on 18th June, 1990, itself, in the P.M.C.H. Patna, but there is no injury report as regards their treatment as an out-door patient or indoor patient. However, P.W. 7 was produced in court to bring on the record esrtain out-door patient tickets (Exts. 6 and 6/1). As admittedly this witness; these tickets were written by Dr. P.C. Jha (P.W. 6), but Dr. RC. Jha who was examined as P.W. 6 did not say that he had treated and prescribed any medicine for P.W. 1 Purushottam and P.W. 2 Dhananjay Singh. The date on the tickets on which, perhaps, medicines were prescribed for these two persons is 19th June, 1990; whereas both must have come to the Hospital on 18th June 1990, itself, in the night, as the fard-beyan shows. Moreover, the ages written on the aforesaid tickets for both P.Ws. 1 and 2 are 18 years. But the deposition of P.W. 2 shows that he was aged 30 years on 23rd April 1991. From the aforesaid facts, it would appear that Ext-6 and 6/1 were just manufactured and manipulated and they were not the documents issued in natural course of business done in the Hospital.

Inimical terms between the parties was well admitted in the fardbeyan itself and the informant and his other relations (P.Ws. 1, 2 and 3) were suggested with the question that the informant himself was a man of criminal antecedent and he was facing various criminal charges along with other civil litigations. Although the suggestions regarding the criminal charges as faced by the informant were denied, but there were admissions regarding civil litigations in the fardbeyan itself. The Police had seized the blood stained dust at the P.O and it had also seized a particular Chaku but none of these were produced in court nor any seizure witness was examined to confirm that, of course, these incriminating articles were seized from the P.O. P.W. 4 had admitted in his cross-examination at Para-17 that against him, there was a case u/s 307 I.P.C. as also for loot. This witness further admitted at this Paragraph that there was a case relating to Dawarchak under the Arms Act in which he was remanded to custody for 23 days. The informant further admitted that he had got himself released 2-3 times in a case lodged by the accused-Appellants. The aforesaid admissions of the informant would show that he was actually carrying criminal background and so chances of his sustaining injury elsewhere in a different manner, cannot be ruled out.

The aforesaid over-whelming set of circumstances was sufficient to discredit the evidence of interested witnesses, which is also not supported by medical evidence. In cases, where the evidence of interested witnesses is rendered unreliable, corroboration from independent ocular and documentary evidence is a must. So in such cases, no conviction can be had on the mechanical evidence of particular witnesses Simply because they want the court to act on their doubtful testimony.

In the result, this was a fit case which entitled the accused Appellants to benefit of doubt. So there is no alternative but to allow these appeals. They are accordingly allowed and the orders of conviction and sentence are set aside. The accused-Appellants shall stand acquitted.