Criminal Appeal (SJ) No.1026 of 2006 **** Against the judgment, dated 20.10.2006, and order of conviction, dated 03.11.2006, passed by Sri Ganesh Prasad Singh, Additional Sessions Judge, Fast Track Court, II, Banka, in Sessions Case No. 140 of 1989/82 of 2006 **** Fuleshwar Mahto, son of late Baldeo Mahto, resident of village Chandan P.s. & district Banka .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. M/S Rakesh Kumar Sinha & Anuj Prakash, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 304 part II of the Penal Code and sentenced to undergo rigorous imprisonment for five years. However, it has been pointed out, at the out set that the appellant has already served the sentence and the learned counsel for the appellant contended that rigour of conviction still stands on the appellant and so the case may be heard on the point of conviction. 3. The prosecution case as alleged in the fardbeyan of the informant, Zainul Mian, son of Fakhru Mian that on 31.05.1989 at about 2 05.00 a.m. while he was taking the brick loaded on his bullock cart then Baldeo Mahto and his son, Fuleshwar Mahto apprehended and asked why he is taking the brick, when Jamadar Saheb will come then the decision will be taken and, thereafter, Baldeo Mahto gave axe blow on his left leg by which he got injury on his leg and blood started oozing out and, thereafter, it is alleged that Fuleshwar Mahto, son of Baldeo Mahto, assaulted him by lathi on his head and thigh and took away the oxen and rupees two thousand from his pocket. On the fardbeyan the first information report lodged initially under Sections 323, 341, 379 of the Penal Code and investigation proceeded. However, during the investigation the offence under Section 302/34 of the Penal Code was also added as the informant, Zainul Mian, died during the investigation. After investigation charge sheet under Section 304 part II and allied sections of the Penal Code was submitted, cognizance was taken and the case was committed to the Court of sessions. After commitment, the charge was framed under Section 302 and other sections of the Penal Code and the trial proceeded. 4. During the trial six witnesses were examined on behalf of the prosecution. P.W. 1, Sukhdeo Khaira, P.W. 2, Mansoor Mian, P.W. 3, Hemu Mian, P.W. 4, Rahman Mian, P.W. 5, Maqbool Mian, and P.W. 6, Dr. Devendra Prasad. The documentary evidence proved are Exhibit 1 is the inquest report, Exhibit 1/1 is the post mortem report, Exhibit 3 is the first information report and Exhibit 4 is the fardbeyan. 5. After considering the oral and documentary evidence the order of conviction recorded, as stated above, though the charge under Section 302 of the Penal Code as established not made out, but, 3 conviction under Section 304 part II of the Penal Code. 6. The learned counsel for the appellant, however, contended that the investigating officer has not been examined in this case, the place of occurrence has not been established, no independent witness has been examined in this case and the police officer, who recorded the fardbeyan, has not been examined and the doctor who examined the victim at the out set has neither been examined nor injury has been proved. Hence, prosecution has not been able to prove this charge. 7. The learned counsel for the State, however, contended that the witnesses who supported the prosecution case has proved and there is nothing in the evidence of informant to disbelieve and no prejudice has been shown. 8. However, six witnesses examined. P.W. 1 has stated that Baldeo Mahto Fuleshwar Mahto loded the bricks and were taking it then informed, Ismail Mian and then there was query. Hence, this witness supported the case of prosecution of taking of the bricks. P.Ws. 2 and 5 supported the prosecution case that prosecution parties was taking the bricks then there was abuse, verbal and physical altercation and Fuleshwar assaulted by lathi on the head of the victim and then Zainul was taken to hospital. P.W. 5 has also supported the prosecution case and stated that Baldeo Mahto assaulted by axe and Fuleshwar Mahto assaulted by lathi. The doctor, P.W. 6, has supported the prosecution case and found three injuries on the person of the victim. 9. The learned counsel for the appellant, however, contended that the place of occurrence has not been established. However, P.Ws. 1, 2 and 5 supported the prosecution case and occurrence at the place of 4 occurrence, hence, the place of occurrence has well been established. However, it has been stated that the investigating officer has not been examined, however, nothing has been shown that non-examination of the investigating officer has caused prejudice to the accused. However, it has been, further, submitted that the police officer, who recorded the statement of the victim (informant) has not been examined. However, the fardbeyan has been marked as Exhibit 4 and on basis of this fardbeyan, itself, the first information report has been lodged and the formal first information report has been proved and marked as Exhibit 3 and non- examination of the police officer, who recorded the statement, has no consequence to this case. The inquest report has also been proved by P.Ws. 3 and 4, which has been marked as Exhibit 1/1. 10. Considering the entire facts and circumstances I do not find any merit to interfere with the conviction and sentence recorded by the trial Court. There is no merit in this appeal. 11. This appeal is dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 15th day of July 2011, N.A.F.R. S.A.