Criminal Appeal (SJ) No.214 of 1998 Against the judgment and order of sentence dated 05. 05. 1998, passed by Sri Nil Mani Kumar, 2nd Assistant Sessions Judge, Sitamarhi, in Sessions Trial No. 131 of 1992/ 1 of 1993. Gaffar Nadaf, son of Late Jumarati Nadar, resident of Village- Gauri, P.S. Nanpur, District- Sitamarhi. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant : Mr. Prasoon Sinha, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 307 of Indian Penal Code and sentenced to rigorous imprisonment for ten years. He is further sentenced to pay a fine of Rs. 2,000/- and in default of payment of fine, further sentenced to undergo rigorous imprisonment for a further period of two years. 3. The prosecution case as alleged that on 23. 03. 1992, the informant along with his brother Amirul Nadaf and cousin brother Islam were coming from Mahuagachhi and reached near the house of the accused Gafar Nadaf, he 2 heard some abusive words being used by Gafar Nadaf to one Ali Imam Nadar. It is alleged that Gafar Nadaf tagged the neck of the informant and when the brother of informant came to rescue he was also assaulted and when the cousin brother came to rescue then he was also assaulted. 4. On the basis of Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted under Section 307 and other allied Sections. Cognizance was taken and the case was committed to the Court of Sessions. Thereafter, framing of the charge, seven witnesses have been examined on behalf of the prosecution. After considering both oral and documentary evidence, order of conviction recorded under Section 307 and sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 2,000/- and in default to undergo rigorous imprisonment for two years. 5. However, perused the record. The prosecution as alleged that three persons were injured. P.W. 3 is informant and in his evidence he has not supported the prosecution case and has stated that he was assaulted by Hausa. P.W. 2 and 4 who are injured brothers of the 3 informant have also not stated that who was assaulted. P.W. 2, though, has stated that he identified the accused not by face but by voice. Hence his identification is doubtful. However, I.O. and Doctor have also been examined in this case and hence injury report has not been proved. 6. Having regarding to the fact witnesses 3 and 4 are hostile and witness no. 2 has identified the appellant by voice and identification by voice is weak evidence for identification, hence is doubtful and I.O. and Doctor have also been examined. 7. Hence, I find and hold that prosecution has not been able to prove the charges beyond all reasonable doubt and hence order of conviction and sentence recorded by the lower court is set aside and the appeal is allowed. Patna High Court The 27th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)