Subhash Paswan, S/o Sohi Paswan, R/o Village-
Kharhara, Police Station-Barahat, District-Banka.
......(Appellant)
Versus
THE STATE OF BIHAR-------(Respondent)
*************
For the Appellant : Mr. Vijay Kumar Sinha-I, Adv.
For the State : Mr. A.M.P. Mehta, APP.
1. The appellant has been convicted under
Section 325 IPC and sentenced to RI for four years and
a fine of Rs. 1,000/- in default of which simple
imprisonment for one year by the 2nd Additional
Sessions Judge, Banka in S.Tr. No. 312 of 1993 by a
judgment dated 19.08.1995.
2. The case of the prosecution is that on
15.07.1991 at 10.30 P.M. the appellant and his son
were fighting with each other at her door which was
objected to by the husband of the informant at which
the appellant is said to have given a lathi blow on the
head of the deceased whereafter the rest of the accused
persons assaulted him with lathi and then fled away.
The injured was taken to the hospital where he died on
19.07.1991. The First Information Report was instituted
on 20.07.1991 at 10.30 A.M. i.e. almost five days later.
3. The prosecution in all examined eight
witnesses out of whom P.W. 4 is tendered, P.W. 2 and
P.W. 3 are the witnesses on the point of occurrence
whereas P.W. 5 is informant of the wife of the deceased.
P.W. 6 is the son of the deceased but the hearsay
witness. P.W. 7 is the Doctor who conducted the post-
mortem and P.W.8 is the formal witness. The
Investigating Officer has not been examined.
4. Initially the accused persons were charged
under Section 302/34 IPC but they were acquitted of
the charges. The sole appellant has been sentenced as
mentioned above.
5. It appears from the evidence of the
witnesses that the injured deceased had been taken to
the Police Station before he was removed to the hospital
and it is only on reference of the police personnel that
he was taken to the hospital but unfortunately neither
the station diary entry nor the first information given at
the P.S. has been proved by the prosecution during
trial. The Investigating Officer has also not been
examined to explain this serious lacunae in the
prosecution case. In the background of the fact that the
First Information Report was instituted five days later
and it was received in the Court on 26.07.1991, this fact
can not be brushed aside lightly since it is well known
that in criminal cases the time of reporting of an
incident is of great importance. The investigation
admittedly was initiated more than a week after the
occurrence so I am not inclined to accept the
prosecution case as having been proved beyond all
reasonable doubt.
6. In the result, the appeal is allowed and
the judgment dated 19.08.1995 passed by the 2nd
Additional Sessions Judge, Banka in S.Tr. No. 312 of
1993 is set aside. The appellant is discharged of the
liability of his bail bond.
(Anjana Prakash, J.)
Patna High Court,
Patna,
Dated, the 21st April, 2011.
NAFR/Vikash/-