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2012 DIGILAW 387 (PAT)

Madan Mahto @ Madan Singh v. State of Bihar

2012-03-02

AHSANUDDIN AMANULLAH

body2012
JUDGMENT Ahsanuddin Amanullah. J .-Heard Mr. Jagarnath Prasad learned counsel for the petitioner and Mrs. Indu Bala Pandey learned A.P.P. for the State. 2. This revision has been filed by the petitioner Madan Mahto against the Judgment and Order dated 16.09.2002 passed by the Additional Sessions Judge-cum-P.O. (F.T.C.) I1Ird Arrah. Bhojpur in Sessions Trial No. 190/93 by which the petitioner has been convicted under Section 323/34 of the Indian Penal Code but inspite of sentence of imprisonment he has been released on execution of bond of Rs.2.000/- with two sureties of the• like amount each for maintaining peace and being of good behavior for a period of one year under Section 4 (1) of the Probation of Offender's Act. 3. The petitioner and two others persons are accused in Sahar P.S. Case No.105/1992 registered under Sections 323, 324, 307/34 of the Indian Penal Code. The police upon investigation submitted charge-sheet against the accused, under all the sections but charge was framed under Section 307/34 of the Indian Penal Code. 4. Learned counsel for the petitioner submits that the said order of conviction is totally erroneous both on facts as well as in law. He points out to the tact that the doctor who has examined the injured (informant) has not been brought before the Court as a witness to prove the injury report which has been done so by the advocate clerk and according to him this lacuna cannot be filled up and the same is fatal to the prosecution since according to him it is now well settled that it is only the doctor who has examined the Injured can testify how the injuries were inflicted and also the opinion about the cause of injury. Learned counsel further submits that in the F.I.R. as well as during the trial and the statement of the witnesses no overt act is attributed to the petitioner who is only said to have been present there with lathi and also exhorted the main assailants in causing injury to the informant. It is submitted that the I.O. has also not been examined which also weakens the' case of the prosecution and the benefit should go to the accused. that is the petitioner. It is submitted that the I.O. has also not been examined which also weakens the' case of the prosecution and the benefit should go to the accused. that is the petitioner. Learned counsel has also drawn the attention of this Court to paragraph No. 8 of the judgment impugned in which the Court has categorically held that there is no evidence to show the nature of injury and instrument which has caused the injury and thus the petitioner was held not guilty under Section 307/34 of the Indian Penal Code. It is submitted that the Court then erroneously has opined that the accused persons can be held guilty of causing hurt to the informant and thus convicted the petitioner under Section 323/34 of the Indian Penal .Code which is not justified in the facts and circumstances of me case. Learned counsel also submits that the petitioner has clean antecedent and is not involved in any other criminal case. 5. Learned counsel for the petitioner further submits that in a case like the present where there is absolutely no legal evidence to convict him. still he has to undergo imprisonment for one month. 6. Learned AP.P. on the other hand submits that at least it is proved that the informant suffered injury for which he has had to undergo treatment in the hospital for a long period and witnesses have also stated with regard to the accused including the petitioner of being party to such occurrence, the judgment impugned cannot be faulted. 7. Upon considering the facts and circumstances of the case after being assisted on the basis of materials on record, the evidence adduced during trial and also after going though the judgment impugned this Court is of the opinion that in the present case the prosecution has not been able to prove the case against the petitioner beyond all reasonable doubts. There is enough legal lacuna to acquit the petitioner which have been overlooked by the Court below. Just because the occurrence •has occurred will not justify the trial Court to convict the person for the same without there being enough cogent and justifiable reason as well as legal evidence available to do so. 8. In view of the aforesaid the conviction of the petitioner cannot be sustained and is accordingly set aside. Just because the occurrence •has occurred will not justify the trial Court to convict the person for the same without there being enough cogent and justifiable reason as well as legal evidence available to do so. 8. In view of the aforesaid the conviction of the petitioner cannot be sustained and is accordingly set aside. The petitioner stands acquitted of the charge against him relating to Sahar P.S. Case No. 105/1992 giving rise to Sessions Trial No. 190/1993. 9. This application accordingly. stands allowed. Application allowed.