DAMODAR DUBEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) This petitioner has been ultimately convicted under section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Originally the trial court had convicted him under section 326 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years and also imposed a fine of Rs. 1000/- which was altered by the appellate court as stated above. It is stated that the petitioner went near the place where the informant was sleeping and assaulted him with dagger causing serious injuries to the informant. The occurrence is said to have taken place in the night of the 6th./7th. June, 1975 at about midnight.

(2.) Two points have been raised by the learned counsel for the petitioner. According to him, the case of the petitioner would be prejudiced due to the non-examination of the investigating officer. He has brought to my notice the vital contradiction which has been mentioned in paragraph 6 of the petition. According to him, apart from the injured p.w.8, the only other witness was p.w.2, who for the first time in court deposed to be an eye witness. Before the police, he was a hearsay witness from p.w.8 and it is stated that the investigating officer's opinion was that he was not an eye witness. Further with regard to p.w.8, it is stated in paragraph 8 of the petition that in Court the witness stated that blood dropped on the ground where the occurrence took place but the investigating officer did not find any blood anywhere. The clothes of p.w.8 also were not produced before the investigating officer. In my view, the appellate court was not right in saying that even if the statement is accepted no prejudice has been caused. In view of the statement of p.w.2 before the police, the veracity of p.w.2 has become extremely doubtful and the evidence of p.w.8 also on the question of place of occurrence would have suffered the same infirmity. Undoubtedly the petitioner has been prejudiced by the non-examination of the investigating officer. The second point raised by the learned counsel for the petitioner is based on the evidence of the doctor (P.W.9). Although the prosecution case is that the injured was assaulted by chhura, no chhura injury was found on his body. The doctor's opinion was also that the injury was by a blunt weapon. In this situation, the prosecution story also becomes extremely doubtful. The application, therefore, is allowed and conviction and sentence of the petitioner is set aside.