(1.) This revision application has been directed against the order dated 27-1-1999 passed by the 1st Additional Sessions Judge Katihar in Cri. Appeal No. 69 of 1994 whereby he dismissed the appeal. The appellants were convicted by Shri N.N. Singh, Judicial Magistrate 1st class. Katihar in G.R. Case No. 781/89 and were convicted under Section 324 of the IPC and were released on admonition under Section, 3 of the Probation of the Offenders Act.
(2.) The case of the prosecution in short was that on 23-4-1989 at a.m., the informant saw that the appellants along with their father were ploughing his field with a tractor which was protested by the informant but the accused persons did not pay any heed. The informant pleaded for getting the land measured but the accused persons persisted with ploughing. Thereafter an altercation took place and Kaplido Sen Gupta (deceased) ordered to assault Jagdish Singh whereupon Aditya Sen Gupta is alleged to have assaulted him with Bhujali, hitting him on his back and left hand whereas accused Anup Sen Gupta struck the informant with sword causing injuries on his ring finger. On alarm raised by the informant the witnesses namely Bhimraj Singh and Bibhikhan Singh came running and thereafter the accused persons fled away. The informant fell down and became unconscious.
(3.) It appears that the learned appellate court took into consideration the First Information Report named witnesses namely Bhimraj Singh and Bibhikhan Singh who were not examined by the prosecution nor the police made them witnesses in the charge sheet. Instead, PW 3, PW 4 and PW 1 who were chance witnesses were examined by the prosecution to support its version and the evidence of PW 1 disclosed that he was at a distance of 400 to 500 yards from the P0 and PW 3 witnesses the occurrence from dam which was also situated at a distance of 400 to 500 yards. As such they were not found to be reliable witnesses. Similarly PW 4 who happened to be related to the informant was also not found to be reliable witness. The only witness who supported the prosecution case was PW 5, the informant but the defence elicited contradiction by drawing his attention to the statement, which he made before the 10. The prosecution has failed to produce the blood stained cloths of the informant. The appellate Court also found discrepancy in the time of occurrence and the evidence of the doctor who stated on oath that he had examined the patient at 1.50 a.m., but the trial Court ultimately held that he had examined the patient at 7.50 a.m., without declaring the doctor as hostile witness. The learned appellate court was also of the view that the prosecution party were a trespassers and the appellant do not seems to have exceeded the right of private defence, in as much as there is no statement of any witness that the accused persons had repeated the blow though the informant was lying unconscious before them. The doctor also found only two injuries by sharp cutting weapon and the third injury was abrasion. As such the appellate Court was of the view that the finding of the trial Magistrate that the appellants and exceeded the right of private defence was erroneous. Taking into consideration the aforesaid facts the learned appellate Court allowed the appeal and set-aside the order of conviction and sentence recorded by the trial Magistrate.