Sujit Narayan Prasad, J. - (1.) This Appeal is against the judgment of conviction and order of sentence dated 29.11.2008 passed by learned Additional Sessions Judge, F.T.C. No. I Garhwa in S.T. Case No.50 of 2003 arising out of Bhawnathpur P.S. Case No.67/1995 corresponding to G.R. No.742/1995, whereby and whereunder the sole appellant has been convicted for the offence under Section 324 of Indian Penal Code and thereby sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.500/- and in case of default to pay fine he must further undergo simple imprisonment for one month.
(2.) The prosecution story in brief: - as per the written complaint of informant Vijay Prasad dated 26.12.1995 that on that date at 10:30 a.m. Rajo Devi wife of Jagdish Choudhary (appellant) was abusing his mother near the house of Mukesh, informant reached there and objected her from abusing, at that moment, Jagdish Choudhary came from his house having Chura and with intention to kill and assault him resulting into injury upon the informant and thereby a criminal case has set on motion. On the basis of the aforesaid written complaint and accordingly the police had arrested her, a case for the offence under Sections 307 and 324 of the Indian Penal Code. The case was committed before the Court of Session for commencement of trial wherein the charge has been framed for the offence under Sections 307 and 324 of the Indian Penal Code and accordingly the appellant has been subjected to the aforesaid trial. The prosecution has produced altogether five witnesses for proving the guilt against the appellant and on the basis of the deposition rendered by them, the appellant has been convicted for the offence under Section 324 of Indian Penal Code and in consequence thereof the appellant has been sentenced to undergo rigorous imprisonment of three years and to pay a fine of Rs.500/- and in case of default to pay a fine he must further simple imprisonment for one month. The appellant being aggrieved with the aforesaid finding given by the trial Court is before this Court under its appellate jurisdiction raising the following points:- (i) F.I.R. has not been proved; (ii) Doctor has not been examined; (iii) Investigating Officer has not been examined; (iv) Injury report has not been proved; (v) Injured witness namely, Tulsi Ram has not been examined; (vi) P.W. 4 Vijay Prasad (informant) in paragrapgh No.9 has stated that Chura by which the blow was given upon the informant although was seized but not produced and not even sent to the Forensic Science Laboratory for its expert examination to corroborate the allegation levelled against the appellant;
(3.) Learned counsel for the appellant, Mr. Sanjay Kumar Tiwari, while arguing the case has submitted that it is a case of conviction only on the basis of the depositions of P.W. 4 namely, Vijay Prasad who happens to be informant and P.W. 5 Sunaina Devi who happens to be mother of P.W. 4 and as such the conviction is totally based upon the deposition of highly interested witness without being corroborated by the other independent witnesses. Since the P.W. 1 and P.W. 3 namely, Ram Sewak Biyar and Shyam Sunder Kumar who happens to be local people, have been turned hostile and as such there is no corroborative piece of evidence to corroborate the deposition of P.W. 4 - Vijay Prasad and P.W. 5 Sunaina Devi, hence the evidence based upon which the appellant has been convicted is totally untrusty evidence and therefore the conviction is not proper. He further submits that F.I.R. has not been proved although Doctor has not been examined and even the Investigating Officer has also not been examined and since the Doctor has not been examined, the injury has not been proved, hence all these aspects of the matter ought to have taken into consideration by the learned trial Court while convicting the appellant. Since in the criminal jurisprudence the conviction is totally to be based upon only in the circumstances when the prosecution would be able to prove the charge beyond all reasonable doubt and hence according to him, the prosecution has failed to prove the charge beyond all reasonable doubt and as such the judgment of conviction and the sentence is not sustainable, hence the same be set aside.;