NARENDRA NATH TIWARI, J. - (1.) THIS appeal has been preferred by the Appellants against the Judgment of conviction and Order of sentence dated 17th December, 2002, passed by the Additional Sessions Judge, Dhanbad in S.T. No. 368/93 whereby, though, the Appellants have been acquitted of the charges framed under Sections 307/34 IPC, they have been found guilty under Sections 324/34/342 IPC and have been sentenced to undergo R.I for" six months along with a fine of Rs. 500 each, for the offence under Sec. 342 IPC and R J for one year, along with a fine of Rs. 500 each, for the offence under Section 324 IPC. Both the sentences are to run concurrently.
(2.) THE prosecution case in brief is that, on 9th May, 1992, at about 12 noon Arvind Kr. (PW -1) one of the informant's son was taken by Surendra Choudhary (Appellant No. 2) to his house. Allegedly Arvind Kr. (PW -1) had stolen his bulb and for that he was tied down and assaulted with fists and slaps. When the informant went to beg release of her son PW -1, she was also threatened. She then returned to her house. At about 4.30 p.m. when the informant's husband returned from his office, the Appellant No. 1 allegedly came to their house and assaulted the informant with sword due to which she sustained injuries on her head and finger. When her husband tried to save her, the Appellant No. 1 assaulted him with sword causing injury on his left hand. The Appellant No. 2 assaulted them also with Lathi. On the alarm raised by them, the neighbours gathered and the Accused persons fied away from the place of occurrence. After investigation of the case, the police submitted final form, under Sections 428, 342,341,307,323/34 IPC and for the said charges, the Appellants were put on trial. In course of trial, the prosecution altogether examined four witnesses. PW -1 Arvind Kr. is the son of the informant, PW -2 Ganapati Tiwari is said to be an independent witness, PW -3 Sadhu Sharan Singh is the husband of the informant and PW -4 Sunaina Devi is the informant herself.The prosecution, however, did not examine the I.O and the doctor who had prepared the injury report after examining the injuries on the person of the informant and her husband. The Appellants were questioned under Sec. 313 Cr.PC They also examined one defence witness who had examined the injuries on their persons and had prepared the injury report, Exh. A & B. Learned Trial Court relied upon the evidences of PW -1 the son of the informant, PW -4 the informant and PW -3 the husband of the informant and convicted and sentenced the Appellants, as above.
(3.) MR . M.B. Lal, learned Counsel appearing on behalf of the Appellants, assailed the impugned conviction and sentence of the Appellants on the ground, inter alia, that there is no material on record, on the basis of which the conviction under Sec. 324 or 342 IPC can be maintained against the Appellants. PW -1 is the son, PW -3 is the husband of the informant and PW -4 is the informant herself. P.W.2 -Ganpati Tiwari, the only independent witness, turned hostile and did not support the prosecution case. The doctor has not been examined to prove the injury. Even the formal FIR, has not been proved by examining any competent witness. The I.O has also not been examined, who could have thrown light on the alleged injuries and the weapons alleged to be used by the Appellants. The Appellants have examined D.W.1 who had prepared the injury reports, Exh. A and B.The prosecution has failed to explain, the alleged injuries on the persons of the Appellants. Learned Counsel submitted that, the conviction and sentence are based on contradictory statements of the interested witnesses and that too without any proof of the alleged injuries on the persons of the informant and her husband and the same rare not sustainable in law. Learned Counsel submitted that, the Judgment of conviction and Order of sentence passed by learned Court below is liable to be set aside even on the ground of non -explanation of the injuries found on the persons of the Accused Appellants. Learned Counsel further submitted that the alleged occurrence took place on 9th May, 1992 and the fardbeyan of the informant is said to be recorded on the same day, but the formal FIR was drawn on 11th May, 1992 and the same was dispatched to the C.J.M on 14th May, 1992. The said inordinate delay in forwarding the FIR to the Court has not been explained and the same has vitiating effect on the prosecution case. Learned Counsel submitted that, there is every possibility of distorting the facts of the alleged occurrence, in absence of any explanation for such inordinate delay in dispatching the FIR to the Court. Learned Counsel relied on a decision in Sidheswar Paswan and Ors. V/s. State of Bihar, reported in 2001 (3) Eastern Criminal Cases 172. He further submitted that in absence of the examination of the doctor and I.O, the injuries have not been proved and the prosecution miserably failed to bring home the charges under Sec. 324 IPC, against the Appellants and as such the impugned Judgment and Order of learned Triar Court being based on the testimony of the family members and the interested witnesses is vitiated in law and is liable to be set aside.;