Criminal Appeal (SJ) No.216 of 1998 ****** Against the judgment and order dated 3rd June, 1998 passed by Sri Viveka Nand Sharma, Ist Additional Sessions Judge, Banka in Sessions Trial No. 582 of 1989. ****** 1. Jwala Prasad Singh, Son of Janardan Prasad Singh. 2. Prabhash Singh. 3. Subhash Singh. 4. Sudhir Singh, all sons of Janardan Singh. 5. Janardan Singh, son of Late Sitabi Singh. 6. Raj Kumar Singh, Son of Damodar Singh. 7. Rajnandan Singh, Son of Harihar Singh. 8. Harihar Singh, Son of Late Ambika Singh. 9. Shyam Kishore Singh, Son of Late Sitabi Singh. All residents of village – Karnabai, P.S. – Banka, District – Banka. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ****** For the Appellants : Mrs. Vimala Kumari, Amicus Curiae. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Nobody appears on behalf of the appellants. Mrs. Vimala Kumari, Advocate is appointed as amicus curiae to assist this Court. 2. Heard learned amicus curiae and learned counsel for the State. 3. Appellant No. 1, namely, Jwala Prasad Singh has been convicted for the offence under Section 326 of the Indian Penal Code and 2 sentenced to undergo rigorous imprisonment for ten years and further convicted for the offence under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellant nos. 4, 6 and 8, namely, Sudhir Singh, Raj Kumar Singh and Harihar Singh have been convicted for the offence under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and further convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellant nos. 2, 3, 5, 7 and 9 have been convicted for the offence under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and further convicted for the offence under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months. 4. The prosecution case as alleged in the fardbeyan is that on 4.10.1983 the informant was going to his village after attending the court thereafter the accused persons surrounded him and Jwala Singh assaulted Haldar Singh with Farsha causing injury on his ear and Sudhir Singh assaulted the informant with back portion of Farsha and other accused persons assaulted the informant with Lathi, Bhala and Farsa and on Halla the wife of the informant and daughter of the informant came there and then the accused persons assaulted the wife of the informant. 3 5. On the fardbeyan of the informant, the FIR was lodged and after investigation charge-sheet was submitted for the offence under Section 307 of the Indian Penal Code and other allied Sections of the Indian Penal Code and the case was committed to the court of Sessions. After commitment the charge was framed under Section 307 and other allied Sections of the Indian Penal Code and during the trial six witnesses were examined. P.W. 1 to 4 is the witnesses on the occurrence whereas P.W. 5 and 6 are the formal witness. However, the I.O. and the doctor have not been examined. 6. On considering the oral and documentary evidence the trial court held that almost all the injuries on the person of the injured persons are simple in nature except 1. The injury on the ear is grievous but held that taking into consideration the entire evidence it is not a case to attract Section 307 of the Indian Penal Code as there was no intention to kill though convicted the appellant Jwala Prasad Singh for the offence under Section 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and further convicted the other appellants as stated above. 7. Learned counsel for the appellants, however, contended that though there is allegation of assault and injury on the ear but neither the doctor nor the I.O. has been examined in this case and because of non- examination of the doctor and merely on the injury report, the order of 4 conviction under Section 326 is not proper. 8. However, on perusal of the records, it is apparent that though the witnesses have supported the prosecution case. The allegation against Jwala Prasad Singh is though specific but the allegation regarding participation of the other accused persons are omnibus and general. However, the doctor has not been examined but the injury has formally been proved. However, the injury reports only suggest a cut injury at the neck. However, the doctor has not been examined and the injury on the person of Haldhar Singh is shown to be incised wound on right ear and there was bleeding and blood clots. However, there is no mention that how the injury is grievous and whether the injury comes under the definition of Section 320 of the Indian Penal Code to attract grievous injury. The doctor has not been examined and there is no reason to rely on injury report when there is nothing to suggest that injury confirm to Section 320 of the Indian Penal Code to attract the definition of grievous injury. Hence, injury no. 1 on the person of Haldhar Singh was grievous. The I.O. has also not been examined and hence it has caused great prejudice and hence having regard to the facts and circumstances the order of conviction and sentence under Section 326 of the Indian Penal Code is not sustainable. With regard to the other accused persons there is omnibus allegation and no specific role attributed and hence the order of conviction and sentence against the 5 other appellants are not sustainable. 9. However, having regard to the fact that there is specific allegation of assault against Jwala Prasad Singh causing injury on the ear though the injury has not been proved by the doctor as the doctor has not been examined nor the I.O. has been examined and hence the order of conviction recorded under Section 326 is not maintainable and is hereby set aside. 10. Having regard to the facts and circumstances, since the doctor and the I.O. have not been examined and the injury has not been proved the manner of occurrence has not been established and ocular evidence has not been corroborated by the medical evidence and non- examination of the I.O. further caused prejudice and hence the order of conviction and sentence recorded by the leaned lower court is hereby set aside and the appeal is allowed. 11. Mrs. Vimala Kumari, shall be supplied a copy of this judgment and she shall be entitled for the fee of hearing payable by High Court Legal Services Committee, Patna. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 25th July, 2011. N.A.F.R./Kundan.