Criminal Appeal (SJ) No. 142 OF 1994 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Sultan Dhunia, S/o Waris Ali Mian. 2. Azim Dhunia, S/o Bhokal Mian. 3. Nawazi Dhunia, S/o Ismial Dhunia alias Issu Dhunia. 4. Hafiz Dhunia, S/o Ismial Dhunia aliash Issu Dhunia. 5. Bohran Dhunia, S/o Ismial Dhunia alias Isu Dhunia. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Mr. Amitabh Kumar-II, Adv. For the State : Mr. Ajay Kumar-II, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant No. 5 has been convicted under Section 304 IPC and sentenced to RI for eight years whereas the rest of the appellants have been convicted under Section 323 IPC and sentenced to RI for one year by the 1st Additional Sessions Judge, Begusarai in S.Tr. No. 79/84/49/91 by a judgment dated 13.05.1994. 2. The prosecution case is that on 13.08.1974 on a minor matter accused persons variously assaulted the deceased on account of which he died later. 3. The prosecution in all examined ten witnesses out of whom P.W. 1 and P.W. 2 have been declared hostile. P.W. 5 is tendered witness. P.W. 8 is the Doctor who had initially examined Devi Paswan, the deceased whereas P.W. 9 and P.W. 10 are formal witnesses. P.W. 4 is the informant whereas P.W. 3 and P.W. 6 are also eye-witnesses who supported the case of the prosecution. The Investigating Officer has not been examined in the present case nor the Doctor who had conducted the post-mortem examination. 4. The defence examined one witness on the point of sanha having been lodged by Ram Balak Paswan giving a different version. No independent witness has supported the factum of occurrence and material eye-witnesses are close relatives of the deceased. 5. Admittedly, death of the deceased on account of assault made by appellant No. 5 has remained unproved on account of the fact that neither the Doctor nor the post-mortem examination report has been brought on record by the prosecution. 6. Under the circumstances, it is difficult to uphold the conviction of the appellant No. 5 under Section 304 IPC. In view of such, he is acquitted of the said charges. Where the assault upon the deceased having been caused by the rest of the appellants is concerned, it has also remained unsubstantiated, in view of the fact that the injury report brought on record by the prosecution was a duplicate copy and in absence of primary evidence it is difficult to uphold the conviction of the appellants even under Section 323 IPC. 7. In the result, the appeal is allowed and the judgment dated 13.05.1994 passed by the 1st Additional Sessions Judge, Begusarai in S.Tr. No. 79/84/49/91 is set aside. The appellants are discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 25th April, 2011. NAFR/Vikash/-