Criminal Appeal (SJ) No.166 of 1996 Against the judgment and order of conviction dated 18th July, 1996 passed by Smt. Rekha Kumari, Additional District and Sessions Judge No. 6, Patna in Sessions Trial No. 665 of 1994. Subhash @ Subhash Prasad Singh, Son of Baidya Nath Singh, resident of village – Bishanpur Beri, Police Station – Mohiuddin Nagar, District – Samastipur. .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s -------------- For the Appellant/s : Mr. Ashutosh Kumar, Advocate. Mr. Nachiketa Jha, Advocate. Mr. Dhananjay Kumar Singh, Advocate. For the Respondent/s : Mr. Sujit Kumar Jha, A.P.P. P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard. 2. The appellant has been convicted for offence under Section 323 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for six months. 3. The prosecution case as alleged by the informant is that at about 11:45 A.M. while he was going to Patna Women’s College to attend the meeting then one person named Subhash came and pressurize to take admission of some of students and when the Principal refused then it is alleged that Subhash gave two and three slaps. It is further alleged that the informant fled away and while he 2 was fleeing away there was firing with intention to kill and in that events his body guard fired and further allegation is of explosion of a bomb by the accused person. 4. On the basis of the fardbeyan of the informant the FIR was lodged and investigation proceeded. After investigation charge-sheet was submitted for offence under Section 307/34 of the Indian Penal Code and allied Section of the Indian Penal Code and 27 of the Arms Act and charges under Section 307/34 of the Indian Penal Code and further under Section 323 of the Indian Penal Code were framed against this appellant. 5. However, during the trial five witnesses were examined. P.W. 1 Dr. Madan Murari, P.W. 2 Vidya Nand Singh, P.W. 3 Radha Krisna Singh, P.W. 4 Madhur Mohan Prasad and P.W. 5 Sanjay Kumar Singh. 6. However, considering the oral and documentary evidence the appellant has been convicted under Section 323 of the Indian Penal Code but acquitted for offence 307/34 of the Indian Penal Code though the benefit of Section 360 Cr. P. C or Probation of Offenders Act was not given and was sentenced to R. I. for six months. 7. Learned counsel for the appellant, however, contended that five witnesses were examined. Except P.W. 1, the other witness has not supported the prosecution case and has been declared hostile. The I.O. of the case has not been examined any medical evidence though there 3 is evidence that P.W. 1 was treated by the compounder of Dr. Gopal Prasad Singh as the injury was only superficial. It has further been contended that though motive of the occurrence alleged that the accuse person was pressuring to take admission which was refused by the informant. It has further been alleged that the appellant himself is a student of M. A. and has already appeared in the M. A. examination hence there is no question of admission and the informant has not named for whose admission the occurrence took place. The appellant was pressurized and hence the motive has not been established. It has further been contended that there is exaggeration of the prosecution case in the F.I.R. and there is allegation of firing as well as explosion of a bomb. However, no witness has come forward to support the prosecution case except P.W. 1, the informant and hence there is no corroboration and due to non-examination of I.O. no objective finding regarding the explosion of bomb and firing brought on the record. The I.O. or doctor was also not examined. Hence, corroborate the objective finding and injury on person of informant. 8. Learned counsel for the State, however, submits and supports conviction and sentence in view of the fact that the occurrence took place in the educational institution. 9. However, the prosecution evidence, though P.W. 1 has supported the prosecution case that Subhash came and asked for admission and when he refused he assaulted. It has further been stated 4 that the bodyguard was also assaulted by slaps and fists and then the security guard fired and in consequence Subhash and his associates 4- 5 in number also fired and started throwing bomb. However, in his cross-examination he has stated that Subhash did not disclose the name of the person to whom he requested for admission in the College. However, neither there is mention of the particular student for whose admission Subhash was pressing nor it has been mentioned in which class the said admission was being sought. He has further stated in his evidence that by the assault he has not sustained specific injury but has stated that he has got dressing of the injury by the compounder of Dr. Gopal Prasad Singh. However, except this witness P.W. 1 the other witness P.Ws. 2, 3, 4 and 5 have not supported the prosecution case and have been declared hostile. Neither the I.O. of the case nor the compounder who has done the dressing of the informant has been examined hence, having regard to the facts and circumstances though P.W. 1 has supported the prosecution case about the assault, firing and explosion by bomb but non-examination of the I.O. no objective evidence regarding the firing or the explosion of bomb was brought on record nor the medical evidence to corroborate the assault when the evidence of P.W. 1 that he was treated by compounder and the only evidence remaining the P.W. 1, informant but without any corroboration hence, having regard to the fact though there is allegation of assault and injury and even the dressing having 5 been done by the compounder but neither the I.O nor the doctor nor the person who did the dressing have been examined in the case and there is no corroboration of the allegation for which the appellant faced session trial and hence in such facts and circumstances the conviction of the appellant without any corroboration on sole testimony of P.W. 1 does not appear to be sustainable and the appellant in the facts and circumstances is entitled to benefit of doubt and hence I give the appellant the benefit of doubt and find and hold that the prosecution has not been able to establish the charges beyond reasonable doubts and hence the conviction and sentence recorded by the learned lower court is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, The 24th June, 2011. N.A.F.R./Kundan.