CR. APP (SJ) No.168 of 1996 ****** Against the judgment and order, dated 18.07.1996, passed by Sri Jugal Kishore Prasad, Sessions Judge, Jehanabad, in S. Tr. No. 574 of 1992 ***** 1. Durga Raut, son of Sanichar Raut, 2. Pramod Kumar, son of Sukeshwar Garai, both resident of village Gangapur, P.S. Ghosi, District Jehanabad. ...Appellant Versus The State Of Bihar ...Respondent ***** For the Appellant ...Smt. Vimla Kumari, Adv. For the Respondent ...Mr. Sujit Kumar Singh, Adv.A.P.P. ***** P R E S E N T HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. Heard learned Amicus Curiae, Smt. Vimla Kumari and learned counsel for the State. The appellant, Durga Raut has been convicted under Section 324 and hence, sentenced to undergo rigorous imprisonment for one year and the appellant no. 2, Pramod Kumar convicted under Section 324/34 I.P.C. and has been sentenced to undergo rigorous imprisonment for three months. The prosecution case, as alleged, is that on the orders of the accused Pramod Kumar, Kapil Prasad co-accused and Durga Raut gave three fasuli blow on the neck and one fasli blow on the cheek of the informant and in the meantime, the witnesses arrived there and pushed out the accused persons by force. In this process, Durga Raut sustained lathi blow and the accused Basudeo Raut, who was also armed with country-made gun opened fire. On the complaint, an F.I.R. was lodged and after framing of charge-sheet, cognizance was taken and the case was committed to the Court of Sessions for offence under Section 307 of the I.P.C. and the charges were framed under Sections 307/149 and 380 of the I.P.C. and after considering the oral and documentary evidence, the trial court convicted the appellants, as stated above. But the Amicus Curiae contended that 5 persons were facing trial out of them three acquitted by trial court and that the doctor, who examined the injured persons and the Investigating Officer, who recorded the statement of witnesses, have not been examined. However, attention was drawn and contradiction pointed out, could not be taken note of and hence, non- examination of the I.O., has caused prejudice to the appellant hence appellants are entitled to benefit of doubt. Having regard to the facts and circumstances, since the doctor and I.O. has not been examined and since, the injury has not been proved or corroborated by the medical evidence and the attention has been drawn, with regard to the earlier statement, but as the I.O. has not been examined, hence it has caused prejudice to the accused. Hence under the facts and circumstance, the benefit of doubt is also required to be extended to these appellants. Hence I give the appellant the benefit of doubt and hold that prosecution not proved the charges beyond reasonable doubt. Hence, having regard to the facts and circumstance, the order of conviction and sentence, recorded by the learned Lower Court is, hereby, set-aside and the appeal is allowed. (Gopal Prasad, J.) The Patna High Court The 6th day of July, 2011 N.A.F.R. Anay/