MIHIR KUMAR JHA - (1.) THE four appellants having been convicted for offence under Section 302 as well as under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and six months respectively, have preferred this appeal assailing the impugned judgment dated 28.11.1990 and the order of sentence dated 29.11.1990 passed by 1st Additional Session Judge, Rohtas at Sasaram in Sessions Trial No. 141/23 of 1986/89..
(2.) THE prosecution case in brief which arises out of Sanjhauli P.S. Case No. 49 of 1985 as per the written report (not exhibited) of the informant Chandradeep Bhagat (P.W.6) is that on 23.11.1985 while he along with his brother Ramjeet Bhagat (deceased), his son Badan Bhagat (P.W.1) as well as his other family inmates of his house (none examined) were harvesting their paddy crop, the four appellants at about 4 PM in the evening had come along with their cattle in the field of the informant and when the cattle of the appellants started destroying the paddy crops, a protest was made by the informant as with regard to the destruction of his paddy crop. He has alleged that on his such protest all the four appellants came armed with lathi and started assaulting him (informant) by lathi and brick bats. The informant also claims that he had seen his nephew Bindhyachal Bhagat (P.W.2), who had emerged on the scene after noticing the assault on him but he too was assaulted by the appellants by lathi. It is the further case of the informant that in the meantime, the villagers including Inerdeo Ram (not examined), Sanbru Dom (P.W.3), Bachan Ram (not examined) also had arrived at the place of occurrence and seeing them, the appellants ran away from the place of occurrence. The informant in his written report had claimed that he had sustained bleeding injury in his chin as also in his whole of the body whereas Bindyachal Bhagat (P.W.2) his nephew had sustained injury in his head as also on his body and his son P.W.1 had sustained injury in his leg while his brother Ramjeet Bhagat (deceased) had sustained injury near his right eye as also in his back with some internal injury on account of which he had become unconscious. According to the written report of the informant he had gone to the police station with his injured brother Ramjee Bhagat in unconscious state as also his injured son (PW1) and injured nephew (PW2) where the written report of the informant (P.W.6) was ascribed by one Vikrama Bhagat (not examined) who is also said to have accompanied the informant , the injured Ramjit Bhagat, Badan Bhagat, Bindhyachal Bhagat and Surrendra Bhagat (not examined). The police having instituted Sanjhauli P.S. Case No. 49 of 1985 initially for offence under Section 341/337/323/307 of the Indian Penal Code had proceeded with the investigation and after the death of the injured Ramjeet Bhagat on 24.11.1985, offence under Section 304 of the Indian Penal Code was sought to be added on 28.11.1985. The police eventually submitted a charge-sheet under Section 304, 341, 337, 324, 323/34 of the Indian Penal Code and the case being exclusively triable by the court of sessions was committed to the court of sessions on 3.3.1986, whereafter, the trial court having framed charge under Section 302 and 323 I.P.C. against all the appellants had conducted the trial leading to the impugned judgment of conviction and sentence of all the appellants.
(3.) MR. Sashidhar Jha, learned counsel for the appellants has submitted that the impugned judgment is wholly unsustainable for a simple reason that the trial court has ignored the material evidence on record which had gone to show that neither the place of occurrence nor the manner of occurrence was in any way corroborated as was alleged by the informant in his written report leading to the institution of First Information Report. In this regard, he has submitted that non-examination of the Investigating Officer by itself has left the place of occurrence wholly unexplained and even if the prosecution could have proceeded in absence of the Investigating Officer, the conflicting manner of occurrence in the evidence of the prosecution witnesses by itself has itself given a fatal blow to the entire prosecution case. Explaining further, he has submitted that the receipt of the First Information Report in the court on 28.11.1985 relating to an occurrence of 23.11.1985 which was also allegedly recorded by the police by instituting the case on the same day i.e. 23.11.1985 also remain shrouded in mystery, inasmuch as, there has been no explanation whatsoever as with regard to such exorbitant delayed receipt of the First Information Report, an aspect which could have been clarified only by the Investigating Officer but he too has not been examined and as such when the F.I.R. itself has not been proven, the entire case of prosecution is fit to be rejected. He has also submitted that the counter case being an admitted fact in the evidence of the prosecution witnesses, the false implication of these appellants cannot be therefore ruled out.;