BALESHWAR MAHTON Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS Revision application has been directed against the order dated 13.11.1998 passed in Cr. Appeal N'o. 125 of 1997 by the 3rd Addl. Sessions Judge, Munger whereby he dismissed the appeal and affirmed the order of conviction and sentence recorded by the Assistant Sessions Judge, Ist in Sessions Case No. 434 of 1987.

(2.) THE allegation against the petitioner in the F.I.R. is that while the informant 's son reached near the house of one Devi Mahto this petitioner along with other accused surrounded him and this petitioner gave a Garasa blow on the head of the son causing injury on his shoulder. Thereafter, other accused, Gajadhar Mahto gave Khanti blow to him. The informant raised alarm on which Bhuneshwar Mahton assaulted the informant with lathi and Bandhu Mahton gave a Garasa blow on the back of the informant. The petitioner as well as other two accused, namely, Gajadhar Mahton and Bhuneshwar Mahton faced trial and the petitioner was convicted under Section 307/34 of the I.P.C. and was sentenced to undergo R.l. for five years whereas remaining two accused persons were convicted under Sec. 323/34 of the I.P.C. and were sentenced to undergo R.l. for six months each. The convicts preferred appeal against the order of conviction and sentence passed by the trial court and their appeal was dismissed by order dated 13.11.1998. The present revision however subsists only in respect of the convict, Baleshwar Mahton, who has been convicted under Section 307/34 of the I.P.C.

(3.) LEARNED counsel appearing for the petitioner submitted that both the courts . below fell in error in convicting the petitioner without the evidence of the doctor and the I.O. who were material witnesses in the case and in the absence of their examination the prosecution had not proved the charges under Section 307/34 of the I.P.C. against the petitioner beyond ail reasonable doubts. It was also submitted that the learned court below wrongly admitted the carbon copy of the injury report in evidences and relied upon the same which was another illegality committed by them.