Criminal Appeal (SJ) No.316 OF 1994 In the matter of an appeal under Section 374(2) of the Code Criminal Procedure. ********** 1. Gohal Mandal, son of late Fattu Mandal. 2. Yogendra Yadav, son of Sri Gohal Mandal. 3. Dukhran Yadav, son of Gohal Mandal,. 4. Jawahar Yadav, son of Gohal mandal. 5. Devendra Kumar alias Gandhi Yadav son of Gohal mandal. 6. Gorelal Yadav, son of late Guinni Yadav, All resident of Village Sakra Paharpur, Police Station Simri Bakhtiyarpur, Dist-Saharsa.----------------------------- Appellants Versus STATE OF BIHAR ------------------ Respondent *********** For the Appellants :- Mr. Sashidhar Jha, Adv. For the State :- Mr. Ram Chandra sahni, Adv. ********* P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ********** Anjana Prakash, J. The appellant No. 1 has been convicted under Sections 148, 325 and 342 of the Indian Penal Code and sentenced to undergo R.I for one year under Sections 148 and 325 and 6 months under Section 342 of the I.P.C whereas the rest of the appellants have been convicted under Sections 342 and 323 I.P.C and sentenced to R.I for six months each under both the counts. The case of the prosecution is that on 09.05.1987 at about 6 A.M the informant was surrounded by the accused persons and assaulted by them with lathis in transaction of which he was injured and hospitalized. After close of investigation charge sheet 2 was submitted under Section 307 and the appellants were also charged under Section 307 and convicted as mentioned above. The prosecution in all examined six witnesses out of whom P.Ws. 1, 2 and 3 are eye witnesses where P.W. 5 is the informant and P.W.4 is the Doctor who examined the injured and P.W. 6 is the formal apart from having examined several documents. It appears that the prosecution did not examine the Investigating Officer and nor did the doctor find any injury of fire arm on the person of the injured and therefore the prosecution case, to a large extent, has not been proved. I also find that the witnesses examined on behalf of the prosecution and informant are all interested and in the background the non-examination of the Investigating Officer who alone could have brought on record the independent picture of the occurrence is fatal to the prosecution. In the result the appeal is allowed and the judgment dated 15.09.1994 passed by the learned Ist Additional Sessions Judge, Saharsa in Sessions Trial No. 33 of 1988 is set aside. The appellants are discharged of liability of their bail bonds. Patna High Court Patna/ Dated, the 4th April, 2011/ NAFR/Prakash/- ( Anjana Prakah , J.)