- (1.) THE instant appeal is directed against the Judgment dated 5-9-2002 passed by Sri. C.Tanti, 4th Additional Sessions Judge, Dumka in S.C. No. 180 of 1998/ 06 of 2002 by which the sole appellant was held guilt for the charge under Sections 323 of the Indian Penal Code and was released on executing probation bond of Rs. 4,000/- wijth two sureties with the direction to maintain peace and be of good behaviour for a period of two years under the provision of Section 4 of the Probation of Offenders Act.
(2.) THE prosecution story in short was that on 14-7-1997 while the informant Shaligram Vaid was doing cultivation work in the field at, about 11 a.m. by ploughing his land, in the meantime, his cousin sister Sahodra Devi (co-accused )came and asked, as to why he had, cut the ridges of her field which resulted into altercation between them which was intervened by the appellant Nilamber Vaid who snatched the spade from the hands of the informant and inflicted injury on his head as a result of which the informant fell down on the earth on sustaining injury. THE informant was removed by his younger brother Deonarayan Vaid to Jarmundi Hospital where he was treated. THE accused escaped after assaulting the informant taking away his spade. On the statement of the informant Jarmundi P.S.Case No.86 of 1997 was registered on 14-7-1997 for the offence under sections 341/323/324/307 of the Indian Penal Code against the appellant Nilamber Vaid and his wife Sahodra Devi. Admittedly, the appellant is the husband of the cousin Sahodra Devi of the informant Shali-gram Vaid. After investigation charge sheet was submitted for the alleged offence under sections 323/ 324/307 of the Indian Penal Code against both the accused and thereafter the case was committed to the court of Sessions. As many as seven witnesses were produced and examined on behalf of the prosecution. Mr. Manoj Tandon, the learned counsel appearing on behalf of the appellant submitted that no legal evidence has been brought about on the record so as to attract the conviction of the appellant under Section 323 of the Indian Penal Code. It would be relevant to mention that charges against the accused were framed under Sections 307/34 of the Indian Penal Code and separate charge against the appellant Nilamber Vaid was also framed under Section 324 of the Indian Penal Code but none of the charges could be proved in course of trial by the prosecution and the appellant was convicted merely on suspicion under Section 323 of the Indian Penal Code which cannot be sustained under law. The allegation against the appellant under Sections 307/34 of the Indian Penal Code could not be substantiated by the evidence though RW:6 Dr. Shambhu Ghose examined on behalf of the prosecution testified that he had/examined the injured Shaligram Vaid on 14-7-1997 at Referral Hospital, Jarmuhdi and found one lacerated cut wound 1"x 1/4"x 1/4" over outer part 6f occipital region -of his scalp in the midline with the margins separated. The age of the injury was assessed about 6 hours old. In the opinion of the Doctor the injury appeared to be caused by hard and blunt substance. On the X-ray of skull no bone injury was detected so in his opinion the injury on the skull of the informant was simple in nature, however, the doctor admitted that such injury could be possible by fall on the hard and blunt substance.
(3.) P.W. 1 Ramprasad Vaid was not the eyewitness of the occurrence but claimed having seen blood oozing out from the head of the informant. P.W.2 Govind Prakash Rakesh, P.W.3 Chamaklal Vaid and P.W.4 Bhuwneshwar Vaid were also not the eye-witnesses of the occurrence and they were consistent by claimed having seen the blood oozing out from the head of the informant and learnt about altercation which took place between Sahodra Devi and Shaligram Vaid which was interfered by the appellant Nilamber Vaid and that the latter assaulted the informant with spade. Their testimony was based upon hearsay. P.W.7 Ranjan Kumar Linda, the Investigating Officer of the case admitted in his testimony having recorded the fardbeyan (Ext.3) of the informant Shaligram Vaid at Referral Hospital Jarmundi. He proved formal FIR (Ext. 4) and visited the place of occurrence but he did not find any mark of cutting of ridge except that the field was ploughed and the learned counsel for the appellant submitted that the prosecution failed to prove the very genesis of the alleged occurrence.;