Faguni Rajwar vs The State of Bihar

Gopal Prasad, J.—Heard learned Amicus Curiae for the Appellant and learned Counsel for the State.

The Appellant has been convicted for offence u/s 307 of Indian Penal Code and sentenced to undergo rigorous imprisonment for five years.

The prosecution case as alleged by the informant that Appellant assaulted the informant by Fasuli and when his wife came to save him she was also assaulted by the Appellant by Fasuli which hit on the joint of left wrist and other co-accused also assaulted by lathi and paina.

On the basis Fardbeyan, F.I.R. was lodged and after investigation charge sheet submitted. The cognizance was taken and case was committed to the Court of Sessions.

However, during trial five witnesses have been examined. But P.W. 2 has been declared hostile, P.W. 5 is formal, P.W. 4 is the informant, who was examined on 05. 12. 1995, thereafter, he did not turn up for further cross-examination. However, neither the I.O. nor the Doctor has been examined in this case. However, learned lower court convicted the Appellant for offence u/s 307 I.P.C.

However, P.W. 1 and P.W. 3 have supported the prosecution case but their evidence is not corroborated by medical evidence as neither the Doctor has been examined nor the injury report has been proved to corroborate their evidence. A compromise petition has also been filed.

However, having regard to the fact that the informant examined has not been presented for cross-examination, neither the injury has been proved nor the I.O. has been examined in this case and P.W. 2 has been declared hostile and P.W. 5 is formal witness.

Hence having regard to the circumstance, since the injury has not been proved, it is not possible to infer whether injured got injury and whether injury was sufficient in ordinary course of nature to cause death to establish offence Section 307 I.P.C. Hence taking into consideration the entire facts and circumstances, I find and hold that prosecution has not been able to prove the charges. Hence order of conviction and sentence recorded by the lower court is set aside and the appeal is allowed.