BIRAN CHOUDHARYALIAS BIRENDRA Vs. STATE

JUDGEMENT

(1.) THE Appellant has been convicted Under Sections 307 and 324 of the Indian Penal Code and sentenced to R.I. for five years Under Section 307 I.P.C. but no separate sentence has been awarded Under Section 324 I.P.C. by a judgment 7.8.1995 passed by the 5th Additional Sessions Judge, Saran in Sessions Trial No. 108 of 1991.

(2.) THE case of the informant Om Prakash (P.W.4) is that while he and one Shambhu Prasad (P.W.2) were proceeding, 3 to 4 persons arrived whom the informant did not recognize and exhorted to hit and then one person assaulted P.W.2 Shambhu Prasad with the dagger on chest beneath his neck, as a result of which he became injured. When he went to rescue Shambhu Prasad, he was also assaulted on the left shoulder. The case was instituted against unknown persons. During trial the appellant was named by P.W.2 Shambhu Prasad after he allegedly regained consciousness.

(3.) SINCE the primary concern of the court would be to consider as to whether the Appellant had been rightly named by the prosecution, the evidence of the doctor was essential, who alone could have deposed as to when P.W.2 had regained consciousness and whether he was in a position to disclose the names of the accused persons before the First Information Report was instituted. On account of non -examination of the doctor the evidence of P.W.2, who admitted that he had disclosed the name of the Appellant after he had regained consciousness three days later, I am not inclined to accept the prosecution case with regard to the complicity of the appellant.