JUDGMENT Hon'ble Mr. Justice I.A. Ansari 1. This appeal is directed against the judgment and order, dated 23-08 2003, passed, in Sessions Case No. 148(T)/2002, by the learned Additional Sessions Judge No. II, Tinsukia, convicting the accused-appellants under Section 325 read with Section 34 IPC and sentencing each one of them to undergo simple imprisonment for three years with fine of Rs.500/- and, in default of payment of fine, suffer simple imprisonment for a further period of 30 days. The case of the prosecution, as unfolded at the trial, may, in brief, be set out thus: (i) On 08-03-2001, at about 9.20 p.m., four accused persons, namely Mahesh Prasad Singh (since deceased), Jay Ram Singh, Harendra Prasad Shah and Rajesh Prasad, along with other two unknown persons, caught hold of Ram Raj Prasad (PW4), while he was returning from market, and assaulted him by means of iron rod and lathis causing injuries on the person of Ram Raj Prasad, including fracture of both bones of his left forearm and fracture of his right patella (knee joint). On being informed that Ram Raj Prasad had been assaulted and was lying injured, his wife (PW1) and his neighbours came to the place of occurrence, found Ram Raj Prasad lying injured at the place of occurrence, the injured reported to them the names of those, who had assaulted and injured him. The injured was first taken to one Dr. Sharma's hospital and from the said hospital, he was taken to Assam Medical College and Hospital, Dibrugarh, and, upon treatment and discharge therefrom, he was shifted to, and treated at, Archana Nursing Home and he was discharged from there after about three weeks. (ii) On an Ejahar, in writing, being lodged, with regard to the occurrence, at Tinsukia Police Station, by the wife of the informant a case was registered against the accused aforementioned, under Sections 147/148/149/307/325/341/34 IPC, and on completion of investigation, police laid charge-sheet, against the four accused aforementioned, under Sections 325/307/34 IPC. 2. During trial, when a charge, under Sections 307 read with Section 34 IPC, was framed, all the accused aforementioned pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether nine witnesses. The accused were, then, examined under Section 313 Cr.P.C. and, in their examinations aforementioned, the accused denied that they had committed the offence, which was alleged to have been committed by them. 3. In support of their case, prosecution examined altogether nine witnesses. The accused were, then, examined under Section 313 Cr.P.C. and, in their examinations aforementioned, the accused denied that they had committed the offence, which was alleged to have been committed by them. The accused aforementioned also took the plea of alibi and adduced, in support of their plea of alibi, evidence by examining two witnesses. 4. Having, however, found the accused persons not guilty of the offence under Section 307 IPC, the learned trial Court acquitted them accordingly; but having found them guilty of the offence under Section 325 read with Section 34 IPC, the learned trial Court convicted them accordingly and passed sentence against them as mentioned above. Aggrieved by their conviction and the sentence, which had been passed against them, the convicted persons have preferred this appeal. 5. I have heard Mr. TJ Mahanta, learned counsel, appearing on behalf of the accused-appellant, and Mr. K Munir, learned Additional Public Prosecutor, for the respondent. 6. While considering the present appeal, what needs to be noted is that the appellant No. 1, namely, Sri Mahesh Prasad Singh, has, admittedly, died. This appeal, therefore, stands abetted as against the said appellant inasmuch as none of his legal representatives has opted to be substituted and contest this appeal. Consequently, this appeal has been heard on behalf of the remaining accused-appellants, namely, Jay Ram Singh, Harendra Prasad Shah and Rajesh Kumar Prasad. 7. Coming to the merit of the appeal, it is to be noted that it is the evidence of the injured (PW4), which is the pivot around which revolves the entire case of the prosecution. According to the evidence of the injured (PW4), on 08-03-2001, at about 9.00 p.m., while he was returning from market and crossing Makum Railway Station, but was still near the railway colony, somebody gave a blow on his head by iron rod and, on turning his head, he (PW4) saw accused Rajesh Prasad Singh (i.e., the accused-appellant No. 4 herein) and, then, two unknown persons caught hold of him (PW4) and when he was scuffling to escape from the clutches of the said two unknown persons, accused Harendra Prasad, Mohesh Singh (since deceased), and Jay Ram Singh, who were all armed with lathis, gave blows with lathis on different parts of his body. It is in the evidence of PW4 that he recognized the assailants, because there was light at the place of occurrence inasmuch as a street light was at a distance of about 20/25 feet away from the place of occurrence and the accused persons, who had assaulted him, were known to him. 8. It is also in the evidence of PW4 that having assaulted him (PW4) in the manner as described hereinbefore and having, perhaps, felt that he (PW4) was dead, the assailants fled away from the place of occurrence, whereupon not only his wife, but other local people, too, gathered there, he told them about the occurrence and as he was unable to walk, the people, who had gathered at the place of occurrence, took him, on a handcart to Sharma's hospital, who gave him some initial treatment and, then, referred him to the Assam Medical College and Hospital, Dibrugarh, where he was admitted and treated and, then, he was shifted to, and treated at, Archana Nursing Home, Dibrugarh. 9. Close on the heels of the evidence of PW4, the evidence of his wife (PW1) is that on the day of the occurrence, i.e., 08-03-2001, at about 9.00 p.m., 2/3 persons came to her house on bi-cycle and reported to her that her husband had been assaulted by some miscreants and was lying between railway station and railway colony, whereupon she rushed to the place of occurrence and, on arriving there, found her husband lying on the ground with injuries on his (PW4's) head, his both hands and right knee joint and when she raised alarm, local people gathered there and, with their help, she shifted her husband to Dr. Sharma's hospital, who gave initial treatment to her husband and, then, sent him to the Assam Medical Hospital, where he was admitted and treated and, thereafter, her husband was shifted to Archana Nursing Home, where he was treated for about 24/25 days. 10. It is in the evidence of PW1 that her husband informed her that accused Mohesh Singh, Jay Ram Singh, Rajesh Prasad Singh and Harendra Shah, accompanied by two unknown persons, had assaulted him by means of iron rod and lathis and that it was accused Rajesh, who had used the iron rod. 11. It is also in the evidence of PW1 that on her instructions, an Ejahar was written, which was lodged with the police. 11. It is also in the evidence of PW1 that on her instructions, an Ejahar was written, which was lodged with the police. The Ejahar has been proved as Ext.1, which clearly mentions the names of the said four accused persons as assailants. The Ejahar was lodged on the following day, i.e., on 09-03-2001. In the Ejahar itself, it was written that the occurrence took place, on 08-03-2001, at about 9.45 pm and the occurrence was reported to the informant (PW1) by the injured (PW4) himself. 12. Though PW1 and PW4, who are husband and wife, were put to cross-examination by the defence, nothing material could be elicited from their cross-examinations to show that what they had deposed was untrue or false. In fact, the evidence of these two witnesses remained wholly unshaken on material aspects. Thus, the unshaken evidence of PW1 and PW4 inspires confidence of this Court. 13. Coupled with the above, PW2, who is one of the neighbours of the accused, has deposed that on the day of the occurrence, at about 9.30 p.m., on hearing that PW4 had been assaulted, he went to the place of occurrence and, on arriving there, he came to learn that PW4 had been taken to Dr. Sharma and, on reaching Dr. Sharma's place, he saw bleeding from the head and hands of the injured Ram Raj Prasad. 14. From the evidence of PW2, who was declared hostile by the prosecution, what has clearly surfaced is that PW4 had sustained injuries on his head and hands. In his cross-examination, PW2 has deposed that he did not talk to the injured or the doctor. This is, somewhat, unnatural, because PW2 had, admittedly, went to Dr. Sharma's hospital to find out the welfare of PW4 and there was no reason for him not to try and find out as to how PW4 had got injured. 15. Thus, it is clear that PW2 has not revealed the complete truth before the Court and his evidence can, by no means, adversely affect the credibility of the evidence of PW1 and PW4, whose evidence, as already discussed above, have remained unshaken on material aspects. 16. Turning to the evidence of PW3, I find that his evidence is, by and large, same as that of PW2. 16. Turning to the evidence of PW3, I find that his evidence is, by and large, same as that of PW2. The evidence of PW2 can, therefore, neither prove the accused as assailants nor would his evidence go in favour of the defence and/or demolish or discredit the evidence of PW1 and PW4, whose evidence have been found to be credible and trustworthy. 17. So far as PW5 is concerned, his evidence is that on 08-03-2001, when he was at his house, a boy came and reported to him that the headmaster of their school had been assaulted and he was to be taken to Sharma's Hospital, whereupon (PW5) he went to the place of occurrence and saw the victim on a handcart and that he noticed injuries on both hands and leg of the victim and bleeding from the backside of the head of the injured and, on a query made by him, the injured PW4 told him that Mahesh Singh, Jay Ram Singh, Rajendra Singh, Harendra Shah and few others had assaulted him. It is the evidence of PW5 that he (PW5) accompanied PW4 to Sharma's Hospital and, then, they arranged a vehicle and took him (PW4) to the police station and from there, PW4 was shifted to Assam Medical College Hospital. 18. From cross-examination of PW5, nothing significant could be elicited by the defence to show that PW5 cannot be relied upon. Far from this, the evidence of PW5, given in his cross-examination, shows that there is an electric pole, as deposed to by PW4, and that the electric light is near the place of occurrence and that the victim told him (PW5) that the occurrence had taken place near the said electric post. 19. Situated thus, one can clearly see that the evidence of PW5 has remained unscathered and intact and his evidence, too, inspires confidence of this Court. 20. As far as PW6 is concerned, his evidence is relevant only to the effect that he wrote, on the instructions of PW1, the First Information Report, which was lodged with the police. 21. 19. Situated thus, one can clearly see that the evidence of PW5 has remained unscathered and intact and his evidence, too, inspires confidence of this Court. 20. As far as PW6 is concerned, his evidence is relevant only to the effect that he wrote, on the instructions of PW1, the First Information Report, which was lodged with the police. 21. Coming to the evidence of PW7, I notice that his evidence is that on the night of the occurrence, at about 9.30 p.m., on being reported that PW4 had been assaulted by some miscreants and he was lying near the railway lines, he (PW7) went out and heard that injured Ram Raj Prasad had been taken to Dr. Sharma's Hospital, whereupon he went to Dr. Sharma's Hospital and found PW4 in injured condition and, on being asked, the injured told him that while he (PW4) was crossing the railway lines and proceeding towards his house, Mahendra Prasad Singh, Jay Ram Singh, Harendra Prasad Shah and Rajesh Prasad, accompanied by two unknown persons, had assaulted him by means of lathis and iron rod. 22. Thus, promptly after the occurrence, PW4 reported the occurrence not only to his wife, but also to his neighbour (PW7) as has been deposed to by PW4. 23. Even though PW7 was cross-examined by the defence, nothing was really elicited from his cross-examination to show that his evidence is unbelievable or untrue. This Court, therefore, has no reason to disbelieve the evidence of PW7 and if his evidence is believed, which this Court has every reason to believe, the injured had, on the very night of the occurrence, mentioned the names of the four persons aforementioned as his assailants. 24. As regards the doctor (PW9), who had examined the injured, on 09-03- 2001, at Assam Medical College and Hospital, found, apart from lacerated injury on the occipital region of the head of the injured and abrasion on his right arm and left forearm, fracture of both bone of the left forearm of the injured and fracture of right patella (knee joint). 25. In his cross-examination, PW9 (doctor) has clarified that without X-Ray, one can ascertain fracture, but without X-ray, pattern of fracture cannot be ascertained meaning thereby that it is not impossible to determine, without X-ray report, as to whether a person has or has not sustained fracture. This apart, the doctor (PW9) has proved Ext. 25. In his cross-examination, PW9 (doctor) has clarified that without X-Ray, one can ascertain fracture, but without X-ray, pattern of fracture cannot be ascertained meaning thereby that it is not impossible to determine, without X-ray report, as to whether a person has or has not sustained fracture. This apart, the doctor (PW9) has proved Ext. 2 as the bed-head ticket of the injured of the Assam Medical College and Hospital, Dibrugarh, which also discloses that PW4 had sustained fracture, as described above, besides lacerated wound, sustained by him on his occipital region and abrasion on his left forearm. 26. In the face of the evidence, adduced by the prosecution and as discussed above, there is no reason to disbelieve the evidence of the injured, his wife and PW7 and when their evidence is considered, in correct perspective, in the light of the medical evidence on record, it clearly follows that the accused aforementioned, as assailants, had caused grievous hurt to PW4. 27. Though the defence has also adduced evidence by examining two witnesses to prove their plea of alibil, it is worth noticing that according to DW1 and DW2, a meeting, with regard to Makum Hindi High School, had taken place, on the night of the occurrence, at the house of DW1, where, according to the evidence of DW1 and DW2, the accused persons remained present from about 7 pm to 10.00 pm. The defence, as indicated hereinbefore, wanted to show from the evidence of DW1 and DW2 that accused could not have been present at the place of occurrence at about 9.30 pm. Though both DW1 and DW2 claim that upon hearing that PW4 had sustained injuries, they visited him at the hospital, yet, strangely enough, they did not ask the injured as to how he was injured or who his assailant was? Since DW1 and DW2 claimed to have gone to the hospital to make inquiry about the welfare of the injured (PW4), there was no rational cause for them not to find out from the injured as to how he had sustained injuries, particularly, when it is not the evidence of DW1 and DW2 that the inured was found incapable of talking and also when we notice that according to the evidence of DW1 and DW2, the wife of the injured was very much present near the injured. The plea of alibi, which the defence has taken, was, therefore, rightly disbelieved by the learned trial Court. 28. Because of what have been discussed and pointed out above, this Court does not find that the findings of guilt, reached by the learned trial Court, as against the accused aforementioned, under Section 325 read with Section 34 IPC, suffers from any infirmity, legal or factual. The prosecution has, I find, proved its case beyond reasonable doubt that the accused-appellants had committed the offence under Section 325 read with Section 34 IPC. 29. So far as the sentence passed against the accused-appellants is concerned, this Court does not find that even the sentence needs any interference by this Court. 30. This appeal is, therefore, held to be wholly without merit and shall accordingly stand dismissed. 31. The accused-appellants are hereby directed to surrender, forthwith, in the learned trial Court, so as to serve out the sentence of imprisonment passed against them. 32. The bail bonds of the accused-appellants are hereby cancelled and their sureties stand discharged. 33. With the above observations and directions, this appeal stands disposed of. Send back the LCR.