JUDGMENT
B.N.P. Singh, J.
1. Shiv Balak Yadav, Meghnath Yadav, Raghunath Yadav, Ram Gope Yadav, Babulal Yadav, Shiv Barat Yadav and Ghamandi Yadav were prosecuted of the charges under Section 323 of the Indian Penal Code (IPC) read with Section 149, IPC on accusation of voluntarily causing hurt to Gora Yadav and Ramhit Yadav, by means of hard and blunt substance, on forming unlawful assembly, and all of them having acted in prosecution of common object of the unlawful assembly. Deonath Yadav, Jagdish Yadav and Kish Yadav were prosecuted for the charges under Section 324, IPC read with Section 149, IPC. on accusation of voluntarily causing hurt to Ramhit Yadav by means of sharp-cutting weapon, in prosecution of common object of the unlawful assembly. Meghnath Yadav was prosecuted for the charges under Section 436, IPC.
2. The factual matrix – the accusation against the appellants and others was that on 22nd May, 1980, at about noon, they came and having trespassed in the house of Raghunandan Yadav, began to remove gunny bags containing wheat, and on protest, while Deonath Yadav assaulted Ramhit Yadav on his head by means of garasa, Sheo Barat Yadav and Ghamandi Yadav assaulted said Ramhit Yadav by means of hard and blunt substance. The accusation against Jagdish Yadav was about assaulting Gora Yadav by means of sharp-cutting instrument. The other accusation was against Megh Nath Yadav about setting the house of Raghunandan Yadav on fire. After the Police was set in motion on these accusations, investigation, commenced in course of which the Police Officer recorded statements of witnesses under Section 161 of the Code of Criminal Procedure, got the injured examined by the doctor, visited the place of occurrence and on conclusion of investigation, laid charge-sheet before the Court. The appellants along with others on their committal to the Court of Sessions, were eventually put on trial.
3. In the eventual trial, the prosecution examined altogether four witnesses, while defence too brought on the record some documents and the trial Court on appreciation of evidence placed on the record, while released Shiv Balak Yadav on admonition, as enjoined under Section 3 of the Probation of Offenders’ Act, convicted and sentenced rest of them. Deonath Yadav suffered conviction under Section 324, IPC and also Section 149, IPC and was sentenced to suffer rigorous imprisonment for one year on each count. Though Meghnath Yadav was not found guilty under Section 436, IPC. He along with Babulal Yadav, Raghunath Yadav, Ram Gope Yadav, Sheo Barat Yadav and Ghamandi Yadav, suffered conviction under Section 323, IPC along with Section 149, IPC. Kish Yadav and Jagdish Yadav were found guilty only under Section 149, IPC and were sentenced to suffer rigorous imprisonment for one year. All the sentences were, however, directed to run consecutively.
4. The finding recorded by the trial Court was sought to be assailed by the learned Counsel for the appellants on variety of reasonings and it is sought to be urged that in the early version of Raghunandan Yadav which he rendered before the Police to set it in motion, though Jagdish Yadav has been saddled with allegation of assaulting Gora Yadav with sharp cutting instrument, even Gora Yadav, who appended to be injured, would not saddle the said Jagdish Yadav for assaulting him, as explicit assertion made by this witness at trial was that it was Kish Yadav, who dealt bhala blow on him. Contrary to the assertions made by this witness, Munarik Yadav (P.W. 2) would state about Jagdish Yadav assaulting Gora Yadav by bhala and if the statement of Ramhit Yadav (P.W. 3) was considered to be credible, he too saddled Kish Yadav to be the assailant of Gora Yadav. Evidence of Raghunandan Yadav (P.W. 4) was, however, otherwise, as though he saddled Jagdish Yadav to be the assailant, the injured was suggested to be one Bhola Yadav. Taking into considerations the narrations made by the witnesses, they appear to be quite incoherent about Jagdish Yadav to be the assailant of Gora Yadav and I must say that the evidence of witnesses were not in tune with the early version of the prosecution.
5. Though Sheo Barat Yadav and Ghamandi Yadav too were suggested to be the assailant of Ramhit Yadav in the early version of the prosecution, there was no evidence worth the name on the record suggesting them to be the assailants of Ramhit Yadav. Contention raised at Bar was that even though the doctor was not examined at trial, conviction under Section 324, IPC was recorded against Deonath Yadav which was not sustainable in law, in view of there being no finding of expert. Contention raised at Bar was that though a large number of persons were shown to have flocked at the place of occurrence, including Anandi Yadav, Kailash Yadav, Dhaneshwar Gope, Arjun Dusadh and others, only interested and partisan witnesses were examined at trial, entirely to the exclusion of independent witnesses and the last argument was that since the Police Officer was not examined at trial and objective finding’ had not been placed on the record, the appellants were seriously prejudiced, and in quick succession, it is urged that since the prosecution was launched against the appellant in the year 1980, due to efflux of 22 years, ends of justice would be met if the appellants, if found guilty by this Court, are sentenced to fine instead of imposing susbtantive sentence.
6. A critical analysis of the testimony of witnesses, as has been urged at Bar, does not project coherent statement of the witnesses about the assailants. True it is that the Police Officer was not examined at trial and many questions remained unaswered, it has not been shown as to how the appellants were prejudiced. Failure of the Police Officer to seize the blood stained soil from the place of occurrence may be a lapse on the part of the Police Officer for which the prosecution cannot be a casuality. I do feel that once the doctor was not examined at trial, the finding of guilt recorded under Section 324, IPC against Deonath Yadav cannot be possibly sustained in law and since other charges against the rest of the appellants had not been established by cogent evidence, suggesting the appellants to be assailants, conviction recorded under Section 323, IPC against them was also not sustainable in law and as a corollary of this, even by legal fiction, the appellants could not be found guilty under Section 149, IPC. However, so far as the case of Deonath Yadav was concerned, the prosecution has laid consistent evidences of P.Ws. 1, 2, 3 and 4 about he being the assailant of Ramhit Yadav by means of garasa and finding of guilt recorded against him under Section 324, IPC is converted into one under Section 323, IPC, and on these premises while finding of the trial Court as against other appellants is set aside and they are acquitted of the charges, Deonath Yadav is found guilty under Section 323, IPC having been acquitted of the charge under Section 149, IPC and he is sentenced to the period already undergone by him. In addition to that he is sentenced to pay a fine of Rs. 500 (five hundred) within three months, in default of which he would suffer simple imprisonment for four months. As such, this appeal succeeds in part with modification in sentence as indicated above.