Criminal Appeal (SJ) No.127 of 1998 Against the judgment and order of conviction dated 28. 03. 1998 and order of sentence dated 30. 03. 1998, passed by Shri Pramod Kumar Srivastava, 3rd Additional District & Sessions Judge, Gopalganj, in Sessions Trial No. 104 of 1985/39 of 1991. 1. Gaya Singh, son of Ramraj Singh @ Ram Rakcha Singh. 2. Shiv Narain Singh, son of Kanchan Singh. Both residents of village- Tarauchak, Police Station- Mirganj, District- Gopalganj. .... .... Appellants. Versus The State of Bihar .... .... Respondent. For the Appellants : Mr. Raghav Prasad, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted for offence under Section 307/34 I.P.C. and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case as alleged by the informant, Bala Singh that at 11 P.M. when he was sleeping then Parma Singh, Gaya Singh and Sheo Narain Singh came and assaulted him causing injury on his neck and his wife make hulla then Gaya Singh gave her a blow with his leg and three accused persons flee away. 2 4. However, during trial the prosecution developed a story that Parma Singh gave dagger blow and other accused persons who are appellants have catch hold of his leg and hand. The material witnesses are informant, P.W. 3 and his wife P.W. 2. P.W. 1, is neighbour has stated that he saw the accused persons fleeing away. P.W. 5, Rajanti Devi, is daughter of the informant. However, the prosecution party claims to have identified the accused persons in the light of the torch and handed over torch to the I.O. 5. However the doctor and I.O. have not been examined and injury has formally been proved. 6. The trial court taken into consideration the injury report has formally been proved and after taken into consideration the fact that Bhulan Devi has not stated about assault by accused Sheo Narain Singh and hence convicted the appellants under Section 307/34 I.P.C., but acquitted the appellants under Section 323 I.P.C. 7. Learned counsel for the appellants however, contends that injury has not been proved by the doctor and hence, injury cannot be sustainable as it has only 3 formally been proved and hence not admissible in evidence. Further the prosecution party has developed the prosecution case from the F.I.R. In the F.I.R. there is no mention that other accused persons catch hold of the victim at the time when the injury was inflicted and this is a further development. Attention of P.W. 2 has been drawn with this regard to this part and development can well be marked from the Fardbeyan of P.W. 3, the informant. 8. Learned counsel for the State however, opposed the contentions of the learned counsel for the appellants and submits that witnesses have supported the prosecution case about assault by dagger and also pointed out that Parma Singh was assaulted and other accused persons catch hold of the informant and details minutes is required to be given and hence non-mentioned that other accused persons have catch hold is of criminal activity. 9. However, taking into consideration the evidence that witnesses, though, supported the prosecution case about assault by dagger and P.W. 2, the wife of the informant has stated that appellants have 4 catch hold of the victim then Parma Singh gave dagger blow. However, attention has been drawn of evidence of P.W. 2 and it is true in contention with regard to assault of P.W. 3, but fact that other accused persons catch hold of him in the Fardbeyan does not find place is apparently a development. However, criticism that minutes details is not required to be given. However, prosecution case itself shows that while the informant was sleeping then Parma Singh gave dagger blow on his neck and on cry of his wife Gaya gave blow to her with his leg. 10. However under the facts and circumstances there was no occasion that accused persons catch hold of the victim and hence it is apparent that it is a development in prosecution case in detail or fasten other appellants to the liability of under Section 307/34 I.P.C. However, having regard to the fact that appellants have been exonerated from the charge under Section 323 I.P.C. and injury on the neck has not been proved by the doctor and hence is not admissible in evidence in view of Section 60 of the Evidence Act as is required to be proved of examination by the doctor and merely producing the report is not admissible. Hence in absence 5 of injury report having been not proved, hence conviction under Section 307 I.P.C. is not maintainable. Further having regard to the fact that witnesses in cross- examination have supported the prosecution case in which attention has been drawn, but I.O. and doctor have not been examined and hence it cause prejudice the appellants. 11. Hence under the facts and circumstances, order of conviction and sentence recorded by the lower court is not sustainable and is hereby set aside and the appeal is allowed. Patna High Court, The 19th September, 2011. NAFR/m.p. ( Gopal Prasad, J.)