Criminal Appeal No.171 OF 1995 (S.J.) [Appeal against the judgment and order dated 7.8.1995 passed by the 5th Additional Sessions Judge, Saran in Sessions Trial No.108 of 1991] BIREN CHOUDHARY @ BIRENDRA CHOUDHARY, SON OF LATE SHEOJEE CHAUDHARY, RESIDENT OF MOHALLA KATAHARI BAGH, POLICE STATION CHAPRA TOWN, DISTRICT SARAN …………………….. Appellant Versus THE STATE OF BIHAR ………….. Respondent For the Appellant : Mr. Pramod Kumar, Advocate For the Respondent : Mr. Rajendra Pd. Nat, Addl. P.P. --------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The appellant has been convicted u/ss.307 and 324 of the Indian Penal Code and sentenced to R.I. for five years u/s.307 I.P.C. but no separate sentence has been awarded u/s.324 I.P.C. by a judgment 7.8.1995 passed by the 5th Additional Sessions Judge, Saran in Sessions Trial No.108 of 1991. The case of the informant Om Prakash (P.W.4) is that while he and one Shambhu Prasad (P.W.2) were proceeding, 3 to 4 persons arrived whom the informant did not recognize and exhorted to hit and then one person assaulted P.W.2 Shambhu Prasad with the dagger on chest beneath his neck, as a result of which he became injured. When he went to rescue Shambhu Prasad, he was also assaulted on the left shoulder. The case was instituted against unknown persons. During trial the - 2 - appellant was named by P.W.2 Shambhu Prasad after he allegedly regained consciousness. During trial the prosecution has examined five witnesses in all. Out of whom, P.W.1 is the doctor, who proved the injury report of Dr. R.R. Sahay, who had examined the injured. P.W.2 is the witness, who had named the appellant during investigation. P.W.3 is a formal witness. P.W.4 is the informant, who admitted that he had not attended in Test Identification Parade, but he identified the appellant in dock as the person who had assaulted P.W.2 and himself. P.W.5 is also a formal witness. Since the primary concern of the court would be to consider as to whether the appellant had been rightly named by the prosecution, the evidence of the doctor was essential, who alone could have deposed as to when P.W.2 had regained consciousness and whether he was in a position to disclose the names of the accused persons before the First Information Report was instituted. On account of non-examination of the doctor the evidence of P.W.2, who admitted that he had disclosed the name of the appellant after he had regained consciousness three days later, I am not inclined to accept the prosecution case with regard to the complicity of the appellant. In the result, the appeal is allowed and the order of conviction and sentence passed against the appellant 7.8.1995 passed by the 5th Additional Sessions Judge, Saran in Sessions - 3 - Trial No.108 of 1991 is set aside. The appellant is discharged from the liability of his bail bonds. Patna High Court Dated, 25th April, 2011. NAFR/ Narendra/ ( Anjana Prakash, J. )