Criminal Appeal (SJ) No.158 of 1996 **** Against the judgment, dated 16th June, 1996, passed by Sri Birendra Singh, Additional Sessions Judge, II, Barh, Patna, in S. Tr. No. 629 of 1989 **** 1. Sheo Prasad Paswan, S/O late Govind Paswan, resident of village Rupas Kamrapar, P.S. Athmal Gola (Barh), district Patna 2. Krishna Paswan, son of Sheo Prasad Paswan, resident of village Rupas Kamrapur, P.S. Athmal gola (Barh), district Patna .. Appellants Versus The State of Bihar .. Respondent **** For the appellant .. Mr. Arun Kumar Tripathi, Adv. Amicus Curiae For the respondent .. Mr. Sujit Narayan Singh, APP **** P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. No one appears on behalf of the appellants in spite of repeated calls. 2. Mr. Arun Kumar Tripathi, Advocate, appears and prays that he may be permitted to appear, in this appeal, as amicus curiae. Prayer is allowed. 3. Heard the learned counsel for the appellant, appearing as amicus curiae, and the State. 4. The appellant no. 2, Krishna Paswan, has been convicted under Section 324/34 of the Penal Code and the appellant no. 1, Krishna 2 Paswan, has been convicted under Section 323 of the Penal Code. However, both the appellants have been given the benefit under Section 360 of the Probation Offenders Act and has been ordered to be released on their entering into a bond of Rs.1,000/- each with two sureties of the like amount each for a period of one year to keep peace and be good behaviour. 5. The prosecution case, as alleged by the informant, Birju Paswan, is that on the date of occurrence at about 12 noon when the informant came out, saw Sheo Prasad Paswan, Krishna Paswan, Siree Das Paswan and Anutha Paswan barricading/fencing the land of the informant on which the informant protested and Siree Das Paswan ordered to assault then Krishna Paswan holding a garasa, in his hand, inflicted injury on his head and assaulted on his hand and other accused persons, holding lathi in their hands, also assaulted the informant and alleged to have broken his left leg. On the fardbeyan, the case was instituted as Barh P.S. Case No. 25 of 1988 for offence under Sections 341, 323, 324 and 325/34 of the Penal Code. However, after investigation, the charge sheet was submitted under Sections 307, 323 and 341 of the Penal Code against all the four accused persons. However, after the submission of the charge sheet the case was committed and the charge was framed for offence under Section 307 and other allied sections of the Penal Code and during the trial two witnesses were examined on behalf of prosecution, who are P.W. 1, Madan Das, and P.W. 2, Birju Das. 6. However, during trial three witnesses examined as Court witnesses, who are C.W. 1, Krishnadev, C.W. 2, Krishna Deo Prasad, and C.W. 3, Arvind Kumar Singh. 3 7. The defence has also adduced, both, oral and documentary evidence. D.W. 1 is Dr. P.N. Das and five injuries were proved on the persons of Kalo Devi, Parmila Devi, Sheo Paswan, Manika Devi and Krishna Paswan. 8. After consider the oral and documentary evidence the order of conviction and sentence was passed, as stated above. 9. The learned counsel for the appellants, however, contends that there is allegation of assault by farsa and assault by lathi causing fracture of the leg and the witnesses thought supported the prosecution case, but, medical evidence suggests a lacerated wound on the right side of the skull and a lacerated wound of swelling on knee joint, hence, contends that though there is allegation of assault by farsa, but, the injury is lacerated and, hence, ocular evidence not substantiated by the medical evidence and, further, the injury by lathi, but, the x-ray has not been proved to establish the fracture. It has, further, been contended that there are injuries on the person of accused and defence and five persons have been injured from the side of the defence for which there is no explanation by prosecution in the fardbeyan. However, during the evidence a prosecution story has been developed that there was brick-bat by the villagers, which may have caused injury to the prosecution party. However, the prosecution story developed at the subsequent stage developing the prosecution case. 10. The learned counsel for the State, however, conceded that so far Exhibit 1, the injury report, though has been proved, shows the injury on the skull is lacerated on the informant and though the injury found, the manner of occurrence and assault by farsa is not corroborated by the 4 medical evidence when there is specific allegation that the injury has been inflicted by farsa, a sharp cutting injury. 11. However, taking into consideration the entire evidence it is true that there is allegation of assault by farsa and lathi and, further, allegation about the fracture does not corroborate a sharp cutting injury and, hence, allegation of the assault by farsa not corroborated by medical evidence and, further, since x-ray has not been brought on record, the assault causing fracture injury is not corroborated by the medical evidence. Moreover, the doctor, who has examined the informant has also examined defence including accused and has proved injury on their person as Exhibits A/1 to A/4 and the injury on the person of the defence has not been explained by the prosecution doubts the manner of occurrence as there is no explanation in the fardbeyan about the pelting of stone, assault of evidence adduced for explanation for injury on the person of defence. 12. Having regard to the facts and circumstances, the order of conviction and sentence recorded by the learned lower Court is not sustainable and, hence, the order of conviction and sentence is hereby set aside and the appeal is allowed. ( Gopal Prasad, J. ) The Patna High Court, The 24th day of June, 2011, N.A.F.R., S.A.