IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1064 of 2009 Mahesh Prasad Singh S/o Shri Basudeo Singh, resident of village- Jamalpur, P.S.-Bihpur District-Bhagalpur. Versus 1. The State Of Bihar. 2. Raj Kishore Singh, son of Deo Narayan Singh. 3. Mani Bhushan Singh, son of Deo Narayan Singh. 4. Jai Prakash Singh, son of Deo Narayan Singh. 5. Gopi Krishna Singh, son of Raj Kishore Singh. 6. Radha Krishna Singh, son of Raj Kishore Singh. 7. Sanjay Singh, son of Mani Bhushan Singh. 8. Tinku Singh, son of Jai Prakash Singh. All are residents of village-Jamalpur, P.S. Bihpur, District- Bhaglapur. ----------- 3 22.07.2011 The informant petitioner has preferred this revision application against the judgment and order dated 26.02.2009 passed by the learned Additional Sessions Judge F.T.C- IV in Cr. Appeal No. 61 of 2008 by which the judgment and order dated 30.04.2008 passed by the learned Sub-Divisional Judicial Magistrate, Nugachia in G.R. No. 75 of 2001 arising out of Bihpur P.S Case No. 21 of 2001 has been set aside. Heard Ms. Sudha Kumari, learned counsel for the petitioner and Ms. Indu Bala Pandey learned A.P.P for the State. Bihpur P.S Case No. 21 of 2001 was lodged on the basis of the written information given by the petitioner. Prosecution case, in brief, is that the informant submitted nomination paper for the election of Mukhia. On 15.02.2001 at about 8 p.m when he was standing in the premises of the Block, Bihpur. In the pre planned manner the accused Radha Krishna Singh inflicted axe blow upon his head, Gopi Krishna Singh also inflicted an axe blow upon his head. 2 In the meantime accused Raj Kishore Singh instigated the co-accused to kill the informant, thereafter, the accused Mani Bhushan Singh inflicted a blow by the butt of the country made pistol which caused injuries on the head, as a result of which the informant fell down and thereafter accused Jai Prakash Singh snatched Rs. 2500/- from his pocket, co- accused Tinku Singh snatched his wrist watch then accused Raj Kishore Singh also inflicted a blow from the backside of axe on the nose of the informant which caused injury. Thereafter, accused Sanjay Singh inflicted several lathi blows on his entire- back, neck and legs of the petitioner. The witnesses intervened and rescued the petitioner thereafter he was brought to the clinic of Dr. Deo Ranjan Prasad (P.W.7) where he was given medical treatment. After investigation the charge sheet was submitted under Sections 323, 324, 325, 345, 341, 379/34 of the Indian Penal Code and cognizance was taken. Thereafter charges were framed for the offences punishable under Sections 341/34, 323/34, 324/34, and 379/34 IPC. Later on the charge under Section 325/34 IPC was further added vide order dated 06.09.2005 of the trial Court. After trial all the accused O.Ps No. 2 to 8 were convicted and sentenced to undergo R.I for one month under Section 341/34 IPC, one year under Section 323/34 IPC, three years under Section 325/34 IPC and one year under Section 379/34 IPC by the learned Judicial Magistrate vide order dated 30.04.2008 and 3 the sentences to run concurrently. Being aggrieved by the aforesaid judgment and order Opposite Party filed Criminal Appeal No. 61 of 2008 in the Court of learned Sessions Judge which has been allowed by the impugned order passed by the learned Additional Sessions Judge F.T.C IV vide order dated 26th February 2009. The main contention of the learned counsel for the petitioner is that there has been sufficient evidence in this case and after considering the prosecution evidence all the accused were convicted but the learned Appellate Court has not considered the evidence properly and has set aside the judgment and order passed by the learned Sub-Divisional Magistrate. After hearing the learned counsel for both the parties and on perusal of the impugned order and material on record it appears that the learned Appellate Court has considered the evidence examined before the learned trial Court and has come to conclusion that there are contradictions in their statements, and there is also contradictions between the medical evidence and ocular evidence. The I.O has not been examined and the prosecution has failed to prove the place of occurrence as well as the manner of occurrence. It further appears that the last prosecution evidence P.W.7 Dr. Deo Ranjan Prasad was examined on 27.01.2005 for the offence punishable under Section 341/34, 323/34, 325/34 and 379/34 IPC but from perusal of the record it appears that after the amendment/reframing of the aforesaid charges no prosecution witnesses have been 4 produced for their examination and cross examination, whereas, summons and bailable warrants were issued upon them for their reexamination. Hence learned Appellate Court has held that the evidence of these witnesses is of no use in the eye of law. The judgment of the trial Court is based on the evidence of the prosecution witnesses examined prior to the amendment of the charges and the accused have been deprived of cross- examination. The non-examination of the prosecution witness has caused serious prejudice to the accused. In support of this contention the accused have relied upon the decision in the case of Moosa Abdul Rahiman & Anrs. V. State of Kerla reported in 1982 Cr. LJ 2087. Considering the facts and circumstances stated above I do not find any ground to interfere with the impugned order. This application is dismissed. Prakash (Amaresh Kumar Lal, J.)