Mr. Amitav K. Gupta, J. - (1.) This appeal is directed against the judgment of conviction dated 29.04.2003 and order of sentence dated 30.04.2003 passed by the learned Addl. District and Sessions Judge, Fast Track Court no.1 Gumla, in S.T. No. 250/1989 whereby the appellant was found guilty and convicted for the offence under Sections 324 I.P.C and sentenced to undergo imprisonment for two years and a fine of Rs.1000/- with a default clause of further imprisonment of six months on failure to deposit the fine.
(2.) The prosecution's case in brief as per the fardbeyan of the informant, Budhu Oraon(P.W.2) is that on 24.12.1981, at 12 noon, he was going to his plot of land and when he reached near the Semal tree the accused, namely, Soma Oraon armed with tangi came running there along with his father, Gendra Oraon and mother, Birso Orain. It is alleged that Birso Orain caught him and the accused, Soma Oraon and his father, Gendra Oraon assaulted him with tangi due to which he sustained injuries on his back, arm, ear and head. Thereafter, Mahadeo Oraon(P.W.1) along with Jowakhim Oraon and his daughter, Budhni Devi(P.W.3) came there and the accused persons fled away. The informant was brought to his home and thereafter taken to the hospital. It is alleged that due to land dispute the accused persons had assaulted the informant with fists and slaps. On the basis of the fardbeyan, the police registered Gumla P.S. Case No. 196/1981 dated 24.12.1981 under Sections 323, 324, 307/34 I.P.C. On completion of investigation, charge-sheet was laid and the accused persons faced the trial on the charges framed and the defence was of complete denial. On the basis of the evidence on record the trial court acquitted the co-accused, Birso Orain but convicted the appellant for the offence under Section 324 IPC. It transpires from the record that one co-accused, Gendra Oraon died during the trial.
(3.) Learned counsel appearing for the appellant, while assailing the impugned judgment, has argued that it would be evident that the witnesses, namely, P.W.1 (Mahadeo Oraon), P.W.3 (Budhni Devi), P.W.4 (Soma Oraon), P.W.5 (Pandu Oraon) and P.W.6 (Jatta Oraon) are the brother, daughter, brother-in-law and nephews respectively of the informant i.e. P.W.2 (Budhu Oraon). That all of them are related and highly interested witnesses and there is no explanation as to why no independent witnesses were examined as the occurrence had taken place in an open area of the village. That the informant has also admitted that there was a panchayati but surprisingly none of the panchayat witnesses have been examined. That the informant has, in his chief examination, deposed that when he reached near the Semal tree the co-accused, Birso Orain caught hold of him and the other two co-accused assaulted him with tangi whereas in his cross-examination he has stated that all the accused persons called him near the Semal tree and admitted that talks took place between them near the Semal tree and a panchayati was also convened on account of the land dispute. It is argued that P.W.3 (Budhni Devi) stated that she had seen the occurrence from her house which is situated 100 yards from the place of occurrence. P.W.4 (Soma Oraon) is the brother-in-law of the informant and a highly interested witness. P.W.5 (Pandu Oraon) is the nephew of the informant and he is not an eye witness to the occurrence. In his cross-examination he has stated that his house is situated at a distance of half a k.m. and when he reached the place he saw 10-12 other persons present there. He has testified that they had cleaned the wounds of the informant and they had taken him to the police station whereas other witnesses have stated that the informant was taken to the hospital. P.W.5 has admitted that his statement was not recorded by the police and the informant, in terms of social relation, is his brother. P.W.6 (Jatta Oraon) is the nephew of the informant. P.W.7 is a formal witness. It is contended by the learned counsel that the doctor has not been examined and the injury report has not been brought on record. That the investigating officer, (I.O) has not been examined and there is contradiction in the testimony of witnesses regarding the manner and place of occurrence. The non-examination of the I.O. has prejudiced the defence and in the absence of any injury report the conviction of the appellant under Section 324 IPC is not sustainable, hence the appellant deserves to be acquitted of the charge.;