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2016 DIGILAW 734 (ORI)

Saheba Bisoi v. State of Orissa

2016-09-01

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The petitioner Saheba Bisoi along with Duryodhan Bisoi, Mohan Bisoi, Sukuta Bisoi, Narayan Bisoi, Narahari Bisoi and Syama Bisoi faced trial in the Court of learned Assistant Sessions Judge, Bhanjanagar in Sessions Case No. 7 of 1994 for offences punishable under sections 148/307/149 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 06.09.1994 while acquitting the co-accused persons of all the charges, found the petitioner guilty under section 307 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years. The petitioner preferred an appeal to the Court of Session which was heard by learned Additional Sessions Judge, Bhanjanagar, Aska in Criminal Appeal No.36 of 1999 and vide impugned judgment and order dated 20.12.1999, the learned Appellate Court has been pleased to dismiss the Criminal Appeal, hence this revision. 2. The prosecution case, as per the First Information Report dated 05.06.1993 lodged by one Khadala Swain (P.W.7) is that on 04/05.06.1993 at about 11 p.m., P.W.7 slept on the open verandah of the house of his paternal uncle Kalu Swain (P.W.9). P.W.9 was also sleeping there near him. During midnight, P.W.7 had been to river embankment to attend the call of nature twice and returned at about 2 O’ clock and slept near P.W.9. At that time, he found that some persons were standing near the house of one Rama Chandra Bisoi and out of them, two persons came near the place of sleeping of P.W.7 being armed with Kati. Looking at them when P.W.7 shouted, the petitioner dealt a blow by means of a Kati aiming towards the neck of P.W.9. The co-accused Mohan Bisoi was also standing by the side of the petitioner being armed with a Kati. P.W.7 shouted and also chased the accused persons but they escaped from the spot. P.W.7 identified the five persons who were standing near the house of Rama Chandra Bisoi as co-accused persons Sukuta Bisoi, Narayan Bisoi, Narahari Bisoi, Syama Bisoi and Duryodhan Bisoi. All the accused persons entered inside the house of co-accused Syama Bisoi. It is further stated in the F.I.R. that P.W.7 clearly identified all the accused persons as it was a full moon night. The co-accused Duryodhan Bisoi was holding a farsa. On return to the spot, P.W.7 found that P.W.9 had sustained severe bleeding injury on his face. All the accused persons entered inside the house of co-accused Syama Bisoi. It is further stated in the F.I.R. that P.W.7 clearly identified all the accused persons as it was a full moon night. The co-accused Duryodhan Bisoi was holding a farsa. On return to the spot, P.W.7 found that P.W.9 had sustained severe bleeding injury on his face. Hearing hullah of P.W.9, daughter of P.W.7 namely Sujata Swain (P.W.1) who was also sleeping nearer to P.W.9 got up and shouted that P.W.9 was being assaulted. P.W.7 along with others appeared at Bellaguntha Outpost and as per the oral report given by P.W.7 which revealed a cognizable case, Benudhar Bhoi (P.W.11), Sub-Inspector of Police attached to Bellaguntha outpost reduced the report into writing and forwarded the report to the Inspector in charge, Bhanjanagar police station for registration and accordingly, Bhanjanagar P.S. Case No. 89 of 1993 was registered under sections 307/34 of the Indian Penal Code against seven accused persons including the petitioner and the Inspector in charge, Bhanjanagar police station directed P.W.11 to take up investigation. P.W. 11 took up investigation of the case and during course of investigation, he recorded the statements of the witnesses, sent the injured (P.W.9) to C.H.C., Bellaguntha for treatment on police requisition. He also visited the spot and prepared the spot map (Ext.3). He searched the houses of the accused persons but found no incriminating articles from their houses. On 05.06.1993 P.W.11 arrested the accused persons Mohan Bisoi, Sukuta Bisoi, Narayan Bisoi, Narahari Bisoi and Syama Bisoi and also the petitioner and forwarded them to Court on 06.06.1993. On 10.06.1993 he received the injury report from the Medical Officer, C.H.C., Bellaguntha and on 30.06.1993, he handed over the charge of the case to I.I.C. Bhanjanagar police station which was subsequently taken over by P.W.10 Brajabandhu Mohanty, Sub-Inspector of Police, Bellaguntha Outpost on 07.08.1993 who examined some witnesses and found prima facie case against the accused persons and accordingly on 18.08.1993, he submitted charge sheet against seven accused persons including the petitioner under sections 147/148/307/149 of the Indian Penal Code. 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Asst. 3. After submission of charge sheet, the case was committed to the Court of Session for trial after observing due committal procedure where the learned Asst. Sessions Judge, Bhanjanagar charged all the seven accused persons under sections 148/307/149 of the Indian Penal Code on 03.05.1994 in the following manner:- Firstly: That you on 04/05.06.1992 night at about 2 a.m. at village Rajanapali, being the member of the unlawful assembly holding deadly weapons like Kati, Farsa committed rioting and thereby committed an offence punishable under section 148 I.P.C. and within my cognizance. Secondly: That you on the above date, hour and place in furtherance of common object assaulted Kalu Swain by Kati, Farsa in order to kill Kalu Swain and that under such circumstances, that if by that act you had caused the death of Kalu Swain, you would have been guilty of murder and thereby committed an offence punishable under sections 307/149 I.P.C. and within my cognizance. The accused persons including the petitioner refuted the charges and pleaded not guilty and claimed to be tried for which the sessions trial procedure was resorted to prosecute them and establish their guilt. 4. During course of trial, the prosecution examined as many as eleven witnesses. P.W.1 Sujata Swain is the daughter of the informant and she is an eye witness to the occurrence. P.W.2 Api Swain is the wife of the injured and she is also the aunt of the informant. She is a post occurrence witness who stated that the informant disclosed before her immediately after the occurrence that the petitioner had dealt a Kati blow on the mouth of her husband and co-accused Mohan Bisoi was also standing there holding a Kati. P.W.3 Trinath Gouda did not support the prosecution case for which he was declared hostile. P.W.4 Iswar Swain is a post occurrence witness who stated that the informant told him that the petitioner dealt a Kati blow to the injured on his mouth and co-accused Mohan Bisoi was also standing there holding one farsa. P.W.5 Keshaba Swain is also a post occurrence witness who stated that the informant told him that the petitioner dealt a Kati blow to the injured. P.W.6 Narayan Swain also stated that the informant told him that it is the petitioner who dealt a Kati blow on the mouth of the injured and co-accused Mohan was standing at the spot with a farsa. P.W.6 Narayan Swain also stated that the informant told him that it is the petitioner who dealt a Kati blow on the mouth of the injured and co-accused Mohan was standing at the spot with a farsa. P.W.7 Khadala Swain is the informant in the case and he is an eye witness to the occurrence. P.W.8 Dr. Rabindranath Behera was attached to C.H.C., Bellaguntha who on police requisition examined the injured and noticed some injures and he referred the injured to Surgery Specialist at Sub-Divisional Hospital, Bhanjanagar for immediate treatment. He opined the three injuries sustained by the injured to be grievous in nature. P.W.9 Kalu Swain is the injured in this case and he stated that while he was asleep, he was assaulted and he got up to see that both the petitioner and co-accused Mohan were running away from the place. He further stated that he was treated as indoor patient at Bhanjanagar Government Hospital for about twelve days. P.W.10 Brajabandhu Mohanty and P.W.11 Benudhar Bhoi are the Investigating Officers. The prosecution exhibited three documents. Ext.1 is the written F.I.R., Ext.2 is the injury report and Ext.3 is the spot map. 5. The defence plea of the petitioner was one of denial and it was pleaded that due to previous enmity, the petitioner has been falsely entangled in the case. Finding of the Trial Court 6. The learned Trial Court held that P.W.1 and P.W.7 are very close relations of the victim and that apart P.Ws.2, 4 and 6 are also closely related to the victim. The learned Trial Court further held that the evidence of P.W.1, P.W.7 and the victim regarding injuries gets corroboration from the statements of other witnesses so also the medical evidence. It was further held that P.W.1, P.W.7 and P.W.9 are natural witnesses and occurrence having taken place at the dead hour of the night when most of the villagers were asleep; merely because the witnesses are related to the victim, their evidence cannot be thrown out. The learned Trial Court further held that the prosecution has failed to prove that the accused persons Durjyodhan Bisoi, Sukuta Bisoi, Narayana Bisoi, Narahari Bisoi and Syama Bisoi were seen at or near the place of occurrence armed with deadly weapons and that they were the members of the unlawful assembly. The learned Trial Court further held that the prosecution has failed to prove that the accused persons Durjyodhan Bisoi, Sukuta Bisoi, Narayana Bisoi, Narahari Bisoi and Syama Bisoi were seen at or near the place of occurrence armed with deadly weapons and that they were the members of the unlawful assembly. The learned Trial Court acquitted co-accused Mohan Bisoi under section 307 read with 148 of I.P.C. but held that it is the petitioner who had dealt Kati blow on the mouth of the victim covering chin and cheek which are the vital parts of the body and accordingly, convicted the petitioner under section 307 of the Indian Penal Code. Finding of the Appellate Court 7. The learned Appellate Court in the impugned judgment held that nothing can be read to discredit the evidence of P.W.7 regarding the identification of the petitioner as it was a moonlit night. The learned Appellate Court further held that it is highly unlikely that the injured and his relation P.W.7 would falsely implicate the petitioner with whom they had no direct enmity if he was not the assailant leaving the acquitted accused persons against whom they had enmity. It was further held by the learned Appellate Court that the petitioner used a sharp cutting weapon and the severity of the blow on a vital portion of the body clearly established an intention on his part to kill the injured who accidentally survived and accordingly, upheld the impugned judgment and order of conviction passed by the learned Trial Court. Submissions 8. Mrs. Jyotsnamayee Sahoo, learned counsel for the petitioner contended that when the petitioner was charged along with six co-accused persons for commission of offences under sections 148/307/149 of the Indian Penal Code and all the six co-accused persons were acquitted by the learned Trial Court, in absence of any specific charge under section 307 of the Indian Penal Code, the petitioner should not have been convicted under section 307 of the Indian Penal Code simpliciter. It is further contended that the evidence of the material witnesses are full of discrepancies and there are material contradictions in their evidence which have been overlooked by the Courts below resulting in miscarriage of justice and therefore, in exercise of revisional jurisdiction, this Court should give benefit of doubt to the petitioner. Mr. It is further contended that the evidence of the material witnesses are full of discrepancies and there are material contradictions in their evidence which have been overlooked by the Courts below resulting in miscarriage of justice and therefore, in exercise of revisional jurisdiction, this Court should give benefit of doubt to the petitioner. Mr. Jyoti Prakash Patra, learned Additional Standing Counsel on the other hand supported the impugned judgments passed by the learned Trial Court as well as Appellate Court and contended that since the petitioner was aware about the charge and the accusation against him and the defended the charges properly, he cannot be said to be prejudiced merely because no specific charge under section 307 of IPC was framed. He further contended that the evidence of the eye witnesses as well as the injured corroborate with each other which also gets support from the medical evidence and the injuries are on the vital part of the body and the manner in which the occurrence has taken place, the nature of weapon used, the period for which the injured was hospitalized, it can be said that the ingredients of the offence under section 307 of I.P.C. are clearly established and therefore, there having no infirmity in the impugned judgments of the Courts below, the revision petition should be dismissed. Medical Evidence 9. The doctor (P.W.8) who examined the injured Kulu Swain (P.W.9) noticed the following injuries:- (i) There was bleeding cut injury at lower lip extending to left cheeks. All the portions of this injury were hanging. The margin was regular. The length of the injury was 8.5 c.m. and the breadth 2.5 c.m. (ii) There was bleeding cut injury at the lower jaw. The margin was regular. The length is 6 centimeter and breadth 2.5. c.m. (iii) The teeth from the lower jaw were chopped off and the portion was bleeding. The teeth of the lower jaw from 1 to 8 on the left side and one to two on the right side were chopped off. P.W.8 has specifically stated that he had referred the injured to Surgery Specialist, Sub-Divisional Hospital, Bhanjanagar for immediate treatment as the patient was severely bleeding. He further opined that the injuries nos. 1, 2 and 3 were grievous in nature and might have been caused by sharp cutting weapon. The medical examination report has been marked as Ext.2. P.W.8 has specifically stated that he had referred the injured to Surgery Specialist, Sub-Divisional Hospital, Bhanjanagar for immediate treatment as the patient was severely bleeding. He further opined that the injuries nos. 1, 2 and 3 were grievous in nature and might have been caused by sharp cutting weapon. The medical examination report has been marked as Ext.2. Nothing has been elicited in the cross-examination to discard the evidence of P.W.8. Therefore, from the medical evidence, it is apparent that the injured (P.W.9) had sustained grievous injuries as per the medical examination report Ext.2. Assessment of eye-witnesses’ account 10. So far as the eye witnesses are concerned, P.W.1 Sujata Swain who is a child witness and aged about ten years at the time of deposition stated that the occurrence took place a year back in the night and she was sleeping near her father (P.W.7) and grandfather Kalu Swain (P.W.9) and she got up hearing the shout of her father who shouted as “DADAKU HANIDELE DADAKU HANIDELE” and then she found that accused Mohan Bisoi and the petitioner were standing near P.W.9 and the petitioner gave a Kati blow on the mouth of P.W.9 for which she shouted “SANA BAPAKU HANIDELE HANIDELE”. It has been confronted to P.W.1 and proved through the Investigating Officer (P.W.11) that she has not stated before police that the petitioner gave a Kati blow to P.W.9 and that accused Mohan Bisoi and the petitioner were standing near her father being armed with Kati and that she shouted “SANA BAPAKU HANIDELE HANIDELE”. She has also not stated that she was sleeping by the side of her father. P.W.7 stated that by the time he raised hullah, the petitioner had already dealt Kati blow on P.W.9 and therefore, it is very difficult to accept that P.W.1 who woke up after hearing the hullah of her father (P.W.7) would have got any opportunity to mark any assault as it is the prosecution case that only one blow was given to the injured. In view of such material contradictions in the evidence of P.W.1, it is very difficult to accept that P.W.1 had actually seen the assault on the injured (P.W.9). 11. In view of such material contradictions in the evidence of P.W.1, it is very difficult to accept that P.W.1 had actually seen the assault on the injured (P.W.9). 11. The next material eye witness is the informant (P.W.7) who has stated that the petitioner was holding a Kati and accused Mohan a Farsa and at about 2 O’ clock in the night, he had seen five to seven accused persons standing in front of the house of one Rama Bisoi and further found that the petitioner was holding a Kati and accused Mohan Bisoi was holding a Farsa and both of them appeared before P.W.9 and petitioner raised the Kati to give violent blow for which he shouted “HANIDELA HANIDELA” and by the time he was raising hullah, the appellant had already dealt Kati blow on the mouth of P.W.9 covering chin and cheek though the attempt was made by him to strike at the neck. He further stated that after assaulting P.W.9, both the petitioner and accused Mohan ran away towards an adjacent lane and other accused persons entered into the house of accused Syama Bisoi. P.W.7 is the nephew of the injured (P.W.9) and he admits that he was an accused in a sessions case instituted by one Banamali Gouda of his village in which the accused persons were the witnesses against him. In view of such close relationship with the injured and animosity with the accused persons, the evidence of P.W.7 requires close scrutiny. It has been confronted to P.W.7 and proved through the Investigating Officer that he has not stated before police that accused Mohan was standing with a ‘Farsa’ and that while he along with his daughter and uncle were sleeping in the outer verandah, his daughter shouted as “SANA BAPAKU HANIDELA, HANIDELA”. Though the informant has stated that the petitioner dealt only one blow by means of a Kati but the doctor has noticed three injuries on the person of P.W.9 and it has not been elicited from the doctor by the prosecution that all the three injuries were possible by one blow. It also appears improbable that the petitioner who was a known person to the injured and also to the other persons who were allegedly sleeping near the injured would attempt to assault the injured in the dead hour of night without taking any precaution to conceal his identity. It also appears improbable that the petitioner who was a known person to the injured and also to the other persons who were allegedly sleeping near the injured would attempt to assault the injured in the dead hour of night without taking any precaution to conceal his identity. He had ample opportunity to assault the injured when the informant was away from the spot to attend the call of nature. Had P.W.7 been present at the spot, he would not been spared by the accused persons just to be a witness against them. In all probability, the occurrence had taken place when P.W.7 had been to attend the call of nature and nobody was there near P.W.9. Therefore, the evidence of P.W.7 also does not inspire confidence. When the evidence of P.W.7 becomes doubtful, merely because he disclosed before others about the name of the assailant would not make his evidence reliable. 12. So far as the injured P.W.9 is concerned, he had not seen the actual assault on him and he stated that when he was fast asleep, someone gave a Kati blow on his mouth and he got up and saw the petitioner and co-accused Mohan were running away from the place where he was assaulted. He had not stated to have seen any weapon in the hands of the petitioner or the co-accused Mohan. It has been confronted to P.W.9 and proved through the I.O. that he has not stated before police that his granddaughter (P.W.1) was sleeping by his side on the verandah. Injuries to a witness do indicate his presence at the time of incident, but from that it does not flow that his evidence is to be accepted automatically. Absence of specific charge under section 307 I.P.C. 13. The evidence of P.W.7 indicates that at least two persons including the petitioner were armed with sharp cutting weapons standing near the injured and the doctor has also stated that the injuries might have been caused by sharp cutting weapons. Co-accused Mohan who was allegedly in the company of the petitioner at the spot has been acquitted of all the charges. Co-accused Mohan who was allegedly in the company of the petitioner at the spot has been acquitted of all the charges. At this juncture, it is pertinent to take into account the contentions raised by the learned counsel for the petitioner regarding illegality committed by the learned Trial Court in convicting the petitioner under section 307 of the Indian Penal Code simpliciter in absence of any specific charge. From the charges framed by the learned Trial Court, it is apparent that even while framing charge under sections 307/149 of I.P.C., it has not been specifically indicated that the petitioner assaulted the injured by means of a Kati rather it is indicated that all the seven accused persons in furtherance of common object assaulted the injured by Kati and Farsa in order to kill him. Other co-accused persons have been acquitted of all the charges. In case of Subran @ Subramanian -Vrs.-State of Kerala reported in (1993) 3 Supreme Court Cases 32, it is held as follows:- “11. Since, appellant I Subran had not been charged for the substantive offence of murder under Section 302 IPC, even the trial court, which tried the six accused persons, was not justified in recording a conviction against him for the substantive offence of murder punishable under Section 302 IPC after framing a charge against him for the offence under Section 302 read with Section 149 IPC only. A person charged for an offence under Section 302 IPC read with Section 149 cannot be convicted of the substantive offence under Section 302 IPC without a specific charge having been framed against him as envisaged by law. Conviction for the substantive offence in such a case is unjustified because an accused might be misled in his defence by the absence of the charge for the substantive offence under Section 302 IPC. Appellant I Subran, was never called upon to meet a charge under Section 302 IPC simpliciter and, therefore, in defending himself, he cannot be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross-examination of the prosecution witnesses. Appellant I Subran, was never called upon to meet a charge under Section 302 IPC simpliciter and, therefore, in defending himself, he cannot be said to have been called upon to meet that charge and he could very well have considered it unnecessary to concentrate on that part of the prosecution case during the cross-examination of the prosecution witnesses. Therefore, the conviction of the first appellant for an offence under Section 302 was not permissible.” In case of Willie (William) Slaney -Vrs.-State Of Madhya Pradesh reported in AIR 1956 SC 116 , it has been held as follows:- “44. In adjudging the question of prejudice, the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed, the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage. In case of Chittarmal and Moti -Vrs.-State of Rajasthan reported in (2003) 24 Orissa Criminal Reports (SC) 664, it is held as follows:- “14. It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Sections 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it involves a common intention, then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non-applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all.” In case of Surajpal -Vrs.-State of U.P. reported in AIR 1955 Supreme Court 419, it is held as follows:- “3. On the above statement of the course of these proceedings, one important fact which emerges is that there have been ‘no’ direct and individual charges against the appellant for the specific offences under sections 307 and 302, Indian Penal Code. The question that arises is whether, without such direct charges the convictions and sentences for those offences can be maintained. It appears to us quite clear that a charge against a person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecution of its common object is a substantially different one from a charge against any individual for an offence directly committed by him while being a member of such assembly. The liability of a person in respect of the latter is only for acts directly committed by him, while in respect of the former, the liability is for acts which may have been done by any one of the other members of the unlawful assembly, provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed. A charge under section 149, Indian Penal Code puts the person on notice only of two alleged facts, viz. (1) that the offence was committed by one or other of the members of the unlawful assembly of which he is one, and (2) that the offence was committed in prosecution of the common object or is such that was known to be likely to be so committed. Whether or not section 149, Indian Penal Code creates a distinct offence (as regards which there has been conflict of views in the High Courts), there can be no doubt that it creates a distinct head of criminal liability which has come to be known as "constructive liability" -a convenient phrase not used in the Indian Penal Code. There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence. Such a case is not covered by sections 236 and 237 of the Code of Criminal Procedure. The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence there for. The absence, therefore, of specific charges against the appellant under sections 307 and 302, Indian Penal Code in respect of which he has been sentenced to transportation for life and death respectively, is a very serious lacuna in the proceedings in so far as it concerns him.” The learned Judges then proceeded to determine the question of prejudice on the facts of the case. The conclusion reached ‘on the facts’ was that prejudice was disclosed and accordingly an order of acquittal was passed. Sum up 14. In the present case from the framing of the charge, it is apparent that the petitioner was not made aware that it is he who assaulted the injured (P.W.9) by means of a Kati. The conclusion reached ‘on the facts’ was that prejudice was disclosed and accordingly an order of acquittal was passed. Sum up 14. In the present case from the framing of the charge, it is apparent that the petitioner was not made aware that it is he who assaulted the injured (P.W.9) by means of a Kati. When the charge was so pointedly vague, the petitioner was not bound to direct his attention in his defence to the question as to whether he was the person who assaulted the injured by means of Kati. There is every possibility that he might have been mislead in his defence due to absence of charge for substantive offence under section 307 of the Indian Penal Code. When specific material regarding the assault on the injured came against the petitioner during the evidence, the learned Trial Court should have amended the charge and framed specific charge. The petitioner was never called upon to meet a charge under section 307 of the Indian Penal Code simpliciter and therefore, in defending himself, he could have very well considered it unnecessary to concentrate on that part of the prosecution case during the cross-examination of the prosecution witnesses. In view of the aforesaid discussion, when the evidence of the eye witnesses are full of material contradictions, the presence of the petitioner at the spot at the relevant point of time without taking any precaution to conceal his identity becomes doubtful, the medical evidence runs contrary to the ocular evidence, the injured himself has not seen the actual assault and the petitioner has been prejudiced by non-framing of a specific charge under section 307 of the Indian Penal Code, since all theses aspects have not been considered by the learned Trial Court as well as Appellate Court, I am of the view that accepting the concurrent findings of fact will lead to miscarriage of justice and perversity and therefore, as special and exceptional circumstances and in the interest of justice, I am inclined to hold that the prosecution has failed to establish the case against the petitioner beyond all reasonable doubt. In the result, the Criminal Revision petition is allowed and the impugned judgments and order of conviction and sentence passed there under is hereby set aside and the petitioner is acquitted of the charge under section 307 of the Indian Penal Code. In the result, the Criminal Revision petition is allowed and the impugned judgments and order of conviction and sentence passed there under is hereby set aside and the petitioner is acquitted of the charge under section 307 of the Indian Penal Code. The petitioner is on bail by virtue of the order of this Court. He is discharged from liability of his bail bond. The personal bond and the surety bond stand cancelled.