CRIMINAL APPEAL No.359 OF 1993 Against the judgment and order dated 7-10-1993, passed by Sri Akhilesh Chandra, 11th Additional Sessions Judge, Gaya, in Sessions Trial No. 423 of 1990/50 of 1991 arising out of Tekari P.S. Case No. 107 of 1988. 1. BIRENDRA SHARMA. 2. HARENDRA SHARMA. BOTH SONS OF SRI CHANDRESHWAR PRASAD SINGH 3. BHOLA SHARMA, SON OF NARESH KUMAR ALL RESIDENTS OF VILLAGE- SUPTA, P.S.- TEKARI, DISTRICT- GAYA ----- Appellants Versus THE STATE OF BIHAR ----- Respondent For the appellants :- Mr. Arun Kumar Singh No. 2, Advocate For the State :- Mr. S. N. Prasad, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The three appellants have filed this appeal in which appellant no. 1 Birendra Sharma is sentenced to undergo R.I. for 3 years for the offence under Section 324 of the Indian Penal Code and appellant nos. 2 and 3 namely Harendra Sharma and Bhola Sharma respectively are convicted under Section 323 of the Indian Penal Code to undergo R.I. for one year each. 2 2. The prosecution case is that Chandrika Singh, the informant, alleges that while he was returning towards his village at about 7 p.m. on 27.5.1988, Birendra Sharma armed with sword and the remaining appellants armed with Lathi assaulted him. He also alleges that Harendra Sharma snatched his wrist watch. On arrival of the villagers, the accused persons fled away. 3. The Fardbeyan is Ext. 3 whereas the seizure list is Ext. 4. The Investigating Officer allegedly seized blood stained white Gamachha. 4. Special features of this case are the articles seized were not produced in Court, the injury report was not exhibited, the Doctor and the Investigating Officer were not examined to substantiate the prosecution case. The Trial Court has also held that the defence cannot be considered because of non examination of the Doctor and the Investigating Officer. 5. Altogether 8 witnesses have been examined in this case. P.Ws. 1, 2 and 3 are the formal witnesses. P.Ws. 5 and 7 were declared hostile. The relevant witnesses on 3 the point of occurrence are P.Ws. 4, 6 and 8. 6. P.W. 4 is the nephew and in his chief he supports the prosecution version. According to him he saw the appellant Birendra Sharma assaulting the informant with a sword on his head. It is alleged that other accused persons gave 6 to 7 lathi blows on the informant. 7. P.W. 6 similarly supports the case of prosecution with respect to the manner of occurrence. 8. The informant P.W. 8 has also supported his case in Court. Cross-examination of these witnesses does not indicate that there is any material that would belie allegations made against the appellants. 9. Learned counsel for the appellants submits that the Court ought to disbelieve the evidence of the witnesses on the sole ground that there is no injury report to corroborate the oral evidence and as such the appellants should be acquitted in this case as only the injury report would have substantiated the prosecution case. Secondly, the learned counsel for the appellants submits that the 4 Investigating Officer has not been examined to substantiate that the occurrence had taken place in the manner alleged. Non examination of the Doctor and the Investigating Officer has caused prejudice to the appellants as they did not get an opportunity to examine the Doctor with respect to the injuries that were inflicted on the informant P.W. 8. Further prejudice is caused to the appellants because the appellants could not cross-examine the Investigating Officer in order to show that there were discrepancies or contradiction in the evidence given in Court and the evidence recorded under Section 161 of the Code of Criminal Procedure. It is, therefore, submitted that in the absence of medical evidence it cannot be presumed by the Court that the appellants were guilty of the offences alleged against them and as such the appellants should be given the benefit of doubt as the prosecution has not been able to prove his case beyond reasonable doubt. 10. I agree with the submissions made on behalf of the appellants and I find that it would be difficult to convict the appellants 5 under Sections 323 and 324 of the Indian Penal Code without the medical evidence to corroborate the factum of assault by the appellants. I thus acquit the appellants in this case after giving the benefit of doubt. 11. The appeal is allowed. The judgment dated 7.10.1993 passed in Sessions Trial No. 423 of 1990/50 of 1991 is set aside and the appellants are discharged from the liabilities of their bail bonds. Patna High Court, The 19th May, 2009 N.A.F.R./Sanjay (Sheema Ali Khan, J.)