IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) No.60 of 2010 1. PRAKASH PASWAN @ PARAGAS PASWAN SON OF LATE SUNDAR PASWAN 2. JAGDEO PASWAN SON OF LATE JAMUNI PASWAN 3. JAGARNATH PASWAN SON OF YOGENDAR PASWAN 4. SHAMBHU PASWAN SON OF BIGU PASWAN ALL RESIDENT OF RASULPUR CHANKITOLA, P.S.-MAJORGANJ, DISTRICT- SITAMARHI ………………………APPELLANTS Versus THE STATE OF BIHAR ……………………..RESPONDENT ----------- For the Appellants :- Mr. Jagdish Prasad No. 1,Advocate Mr. Virendra Kumar, Advocate For the Respondent :- Mr. S. N. Prasad, APP ---------------------- 2 28/01/2010 Heard learned counsel for the appellants and learned APP on the present appeal preferred by the appellants above named as the learned counsel for the appellants has assisted this court by producing necessary copies of the depositions of the witnesses so it is being disposed of at the stage of admission itself. The appellants above named have been convicted under Sections 307/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 1,000/- each and in default of payment they have been directed to undergo simple imprisonment for six months each by Sri Nand Kishore Tiwari, Additional Sessions Judge, F.T.C. I, Sitamarhi in Sessions Trial No. 65 of 2009/32 of 2009. The judgment of conviction was passed on 18th January, 2010 and the order of conviction was passed on 22nd January, 2010. 2 Informant Mahesh Ram gave his fard-e-beyan on 8.5.2007 at Sadar Hospital, Sitamarhi in which he has stated that at preceding night of 7.5.2007 at about 9.00 P.M. Prakash Paswan, Jagdeo Paswan, Shambhu Paswan, Kamal Paswan and Jagarnath Paswan caught hold him. Appellant Prakash Ram assaulted the informant by means of knife in the stomach, thereafter, the informant had to be rushed to hospital. Fard-e-beyan of the informant was resulted into registration of Majorganj P.S. Case No. 62 of 2007 dated 11.5.2007 under Sections 448, 324, 307/34 of the Indian Penal Code. The police took up investigation and after investigation submitted Chargesheet only against four accused persons who are the appellants here. Nothing was found against Kamal Paswan and he was discharged. After taking cognizance the case was committed to the Court of Sessions where the charges were explained to the accused persons, they pleaded innocence and trial proceeded. The defence of the appellants was of innocence and of false implication. In order to substantiate the case, the prosecution examined six witnesses. The informant was examined as PW 1 and other witnesses were Suresh Ram PW 2, Shanti Devi PW 3, Jai Mangal Singh PW 4, Dr. Shakil Anjum PW 5 and Shiva Nand Mishra the I. O. PW 6. 3 The informant of the case has supported the factum of assault in his examination in chief but while he was being cross-examined he gave categorical statement that it was a dark night so he could not identify any of the appellants. He stated that he was told by Suresh Ram about the accused persons. He has denied that the police has recorded his statement categorically rather he has stated that the police has not read and explained his statement and he was made to put his thumb impression on the direction of the police. Later on he came to know that the persons who are innocent have been made accused. Having acquiring this knowledge regarding innocence of the appellants he compromised the case. The wife of the informant and other two witnesses, namely, PW 2 and PW 3 were declared hostile and they have not supported any part of the occurrence, therefore, there was no support at all of the charge that the appellants have committed any overt act which has caused injury to the informant PW 1. No doubt doctor has supported the factum of assault but the evidence of doctor only goes to prove that the informant was injured. This fact is not in dispute that the injured has received some injury on the date and time of occurrence but for fixing liability the court must come to the opinion that they are appellants who have caused injury as alleged. When the informant and other 4 witnesses are saying that they are not knowing the appellants then there was no material before the Court to presume that they have committed the offence of assault. No presumption is available under charges under Sections 307/34 of the Indian Penal Code. On the basis of presumption no Court can pass order of conviction. In the result, I am of the view that the judgment of conviction and sentence is illegal and is fit to be set aside at the stage of admission itself. Accordingly, the judgment of conviction and order of sentence dated 18th January and 22nd January, 2010 passed by Sri Nand Kishore Tiwari, Additional Sessions Judge, F.T.C. I, Sitamarhi in Sessions Trial No. 65 of 2009/32 of 2009 is set aside and the appellants above named are directed to be released forth with if not wanted in any other case. They are discharged form the liabilities of bail bonds. Let this order be communicated through fax to the trial court at the cost deposited by the appellants. avin (Shyam Kishore Sharma, J.)