CRIMINAL APPEAL No.195 OF 1993 ---- Against the judgment of conviction and sentence dated 24.6.1993 passed by Sri Ashok Kumar Verma, 6th Addl.Sessions Judge, Arrah in Sessions Trial No. 286 of 1982. ----- Ram Rajesh Singh ……. Appellant Versus The State of Bihar ……. Respondent ----- For the appellant : Mr.Narbahadur Prasad Singh For the State : Mr.R.K.P.Yadav, Addl.P.P. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ----- S.K.Sharma,J. This appeal has been filed by the sole appellant against the judgment of conviction and sentence dated 24.6.1993 passed by 6th Additional Sessions Judge, Arrah in Sessions Trial No. 286 of 1982 whereby out of ten accused persons nine accused persons have been acquitted and only the appellant has been convicted under Section 324 of the Indian Penal Code and has been sentenced thereunder to undergo rigorous imprisonment for three years. In brief, the prosecution case is that on 6.12.1977 at about 5 A.M. when the informant Dhanjee Pandit was taking out the cattle from his house in village Mahudahi, all on a sudden the appellant Ram Rajesh Singh and also acquitted accused persons namely, Ramesh Singh, Raj Narayan Upadhya, Sohan Singh, Veer Narayan Singh, 2 Baban Singh, Badan Singh, Ram Bilash Singh, Bakatu Singh, Budhu Singh and other accused Tribhuwan Singh, Hirday Nand Singh and Sita Ram Singh came there variously armed and started indiscriminately assaulting the informant and his father Jamadar Pandit. One of the accused Sita Ram Singh had ordered to assault Jamadar Pandit, on which appellant Ram Rajesh Singh and accused Ramesh Singh assaulted Jamadar Pandit with bhala in his chest as a result of which he fell down. Thereafter, accused Bakatu Singh also assaulted Jamadar Pandit with bhala in his abdomen. Accused Baban Singh and Veer Narayan Singh assaulted Satyadeo Pandit, brother of the informant, with bhala. Other accused Hirdaya Nand Singh and Tribhuwan Singh assaulted the informant and his father with lathi. Accused Sohan Singh, Ram Ballam Singh and Badan Singh assaulted Manji Pandit with lathi. Accused Raj Naarayan Upadhyua and Badhu Upadhya were instigating the accused persons to kill the informant and his other men. The motive behind the occurrence was about the allegation of uprooting and taking away the masuri crops of the appellant. The informant lodged a sanha which resulted F.I.R. and Barahara 3 P.S.Case No. 1(12)77 was registered. The matter was investigated into and after completion of investigation, charge sheet was submitted against 12 accused persons under Section 307 and other allied sections of the Indian Penal Code. After cognizance, the case was committed to the court of sessions. In course of trial, two accused namely, Sita Ram Singh and Tribhuwan Singh died. So their names were expunged and trial proceeded only against ten accused persons. The defence of the appellant as well as the other accused persons who have been acquitted was of false implication. In order to prove its case, the prosecution has examined six witnesses. P.W.1 is Ram Deyal Yadav who has not supported the prosecution case. So he has been declared hostile. P.W.2 is Satyadeo Pandit who is brother of the informant. P.W.3 Ram Dheyan Yadav has been examined as a chance witness. P.W.4 Dhanjee Pandit is the informant of this case. P.W.5 is Manjee Pandit. P.w.6 is a formal witness who has proved some documents. The doctor and the Investigating Officer have not been examined in this case. 4 The informant (P.W.4) in his evidence has stated that on 6.12.1977 at about 5.30 A.M. he was taking out his cattle and at that time, his father was also there. All on a sudden, accused persons came and appellant Ram Rajesh Singh assaulted his father on chest with bhala and when he went to rescue his father, he was also assaulted by the accused persons. Manjee and Satyadeo were also assaulted by the accused persons. P.W.5, who is brother of the informant, in his evidence has stated that at the time of occurrence, he was at his dalan. He in his cross- examination has stated that he has not seen any injury on any person. P.W.3 has stated only about the appellant that he assaulted father of the informant with bhala. P.W.2 though has claimed himself to be the eye witness but he has seen the part played by the appellant only. It has been submitted by learned counsel for the appellant that the informant in his fardbeyan has stated that this appellant and one Ramesh Singh have given bhala blow on the chest of his father. He has also stated this fact in the statement recorded by the police under 5 Section 161 of the Code of Criminal Procedure and he has also described the role of all the accused persons but in his evidence, this witness did not name all the accused persons who assaulted him, his brother P.W.5 and Satyadeo Pandit P.W.2. This witness in his cross- examination has further stated that in the fardbeyan, the allegation of assault by all the accused persons except Ram Rajesh Singh, appellant, was false. It has been submitted that in view of the contradictory statement of the informant, it is proper to discredit his evidence in entirety. Another submission on behalf of the appellant is that neither the doctor has been examined nor the injury report has been brought on the record and in absence of injury report and the evidence of doctor, it cannot be inferred that what was the injury received by the victim namely, the father of the informant. It has also been submitted that non-examination of the doctor has caused great prejudice to the appellant. In this case, Investigating Officer has also not been examined. Learned counsel for the appellant has submitted that for non-examination 6 of the Investigating Officer, statements of a number of witnesses recorded under Section 161 of the Code of Criminal Procedure could not be brought on record. In absence of Investigating Officer, contradictions have also not been pointed out. Learned counsel for the appellant has also submitted that the place of occurrence has not been established in absence of the Investigating Officer. Learned A.P.P. has submitted that the trial court has rightly convicted and sentenced the appellant and the impugned judgment requires no interference by this Court. It appears that doctor has not been examined in this case. If the prosecution has proved its case that some injuries were caused and injured were treated by a doctor, then it was for the prosecution to bring the doctor to the dock or at least injury report should have been brought on record which could have shown that at least the injured was taken to hospital but in this case nothing is on the record which has certainly caused great prejudice to the appellant. 7 In this case Investigating Officer has also not been examined. The fardbeyan is on the record in which the informant has stated that the appellants and a number of persons were behind the occurrence but in court, he has stated about the role in the occurrence only about the appellant. On this score, non-examination of the Investigating Officer has caused great prejudice to the appellant as the appellant has failed to take out any contradiction from the development of the entire prosecution case. It was for the prosecution to prove its case in entirety. The prosecution has alleged that on account of assault four persons were received injuries but the said story has been completely go by at the stage of evidence. The contradiction has remained unexplained. In these circumstances, I am of the view that the prosecution has not been able to prove its case beyond shadows of all reasonable doubts. As such, the appellant is entitled to be acquitted. In the result, this appeal is allowed and the impugned judgment of conviction and sentence 8 is set aside. The appellant is also discharged from the liability of his bail bond. ( Shyam Kishore Sharma, J. ) Patna High Court,Patna The 12th February,2008 Tahir/-(NAFR)